Opinio Juris Volume 11, 2012 - Basel Institute on Governance

Transcription

OPINI
JURIS
DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL
KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA
Volume 11 Mei—Agustus 2012
ARTIKEL
Asset Recovery: The Endless Fight
Paku Utama
The Role of International Instruments in Asset Recovery: What can we learn so far?
Novriady Erman
Recovering Indonesia’s Assets: Past, Present and Future
Amien Sunaryadi and Dayu Nirma Amurwanti
Law and Practice of Asset Recovery in Indonesia: Challenges and Opportunities
Hikmahanto Juwana, M. Ajisatria Suleiman and Harjo Winoto
Developing International Cooperation: A Need for Expediting Mutual Legal
Assistance
Giri Suprapdiono
The Admissibility of Evidence Obtained Abroad
Reda Manthovani
Practical Hurdles to Effective International Recovery of Stolen Assets
Gretta Fenner Zinkernagel and Anja Roth
The Role of Gatekeepers in Obscuring the Looted: Practical Challenges
Arinta Luthri Handini
RESENSI BUKU
Asset Recovery Handbook – A Guide for Practitioners
Ni Putu Anggraeni
ISTILAH HUKUM
Jurnal Hukum dan Perjanjian Internasional
OPINIO JURIS
PENGEMBALIAN ASET CURIAN
DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL
KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA
2012
OPINIO JURIS
Diterbitkan oleh
Direktorat Jenderal Hukum dan Perjanjian Internasional
Kementerian Luar Negeri
Sejak Oktober 2009
Penanggung Jawab
Linggawaty Hakim
Raudin Anwar
Redaktur
Yoshi Iskandar, Kemal Haripurwanto, Amrih Jinangkung, Elmar Iwan Lubis, ADH.
Irfan, M. Syarif Alatas, Windratmo
Editor
Yoseph T. Tutu, AM. Sidqi, Santa Marelda Saragih, Ratih Wulandari, Vina Novianty,
Ni Putu Anggraeni
Disain Grafis
Abdul Hayyi, Didi Achmadi
Sekretariat
Uki Subki, Karsim, Maisaroh, Asep Haryadi, Solehudin
Alamat Redaksi:
Sekretariat Direktorat Jenderal Hukum dan Perjanjian Internasional
Jl. Taman Pejambon No. 6 Jakarta Pusat
Telp. +62 21 3846633 Fax. +62 21 3858044 Email : [email protected]
Jurnal Opinio Juris edisi digital dapat diunduh di website
http://pustakahpi.kemlu.go.id/
Tulisan yang dimuat dalam Jurnal Opinio Juris adalah pendapat dan analisis pribadi
dari para penulis dan tidak mewakili pandangan/posisi Kementerian Luar Negeri
dan/atau Pemerintah Indonesia.
JURNAL OPINIO JURIS
Vol. 11 No. 01 Mei—Agustus 2012
Daftar Isi
Daftar Isi ............................................................................................................... i
Daftar Gambar .................................................................................................. iii
Sambutan Direktur Jenderal Hukum dan Perjanjian Internasional ...... iv
Sambutan Country Manager UNODC Indonesia ......................................vii
Pengantar Redaksi ............................................................................................ xi
ASSET RECOVERY: THE ENDLESS FIGHT .............................................. 1
Paku Utama
THE ROLE OF INTERNATIONAL INSTRUMENTS IN ASSET
RECOVERY: WHAT CAN WE LEARN SO FAR? ..................................... 17
Novriady Erman
RECOVERING INDONESIA’S ASSETS: PAST, PRESENT AND
FUTURE ............................................................................................................. 44
LAW AND PRACTICE OF ASSET RECOVERY IN INDONESIA:
CHALLENGES AND OPPORTUNITIES ................................................... 50
Hikmahanto Juwana, M. Ajisatria Suleiman, Harjo Winoto
DEVELOPING INTERNATIONAL COOPERATION: A NEED FOR
EXPEDITING MUTUAL LEGAL ASSISTANCE ...................................... 63
Giri Suprapdiono
THE ADMISSIBILITY OF EVIDENCE OBTAINED ABROAD ............ 76
Reda Manthovani
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PRACTICAL HURDLES TO EFFECTIVE INTERNATIONAL
RECOVERY OF STOLEN ASSETS............................................................... 88
Gretta Fenner Zinkernage and Anja Roth
THE ROLE OF GATEKEEPERS IN OBSCURING THE LOOTED:
PRACTICAL CHALLENGES ....................................................................... 106
RESENSI BUKU ............................................................................................. 117
Asset Recovery Handbook – A Guide for Practitioners
Ni Putu Anggraeni
ISTILAH HUKUM ......................................................................................... 121
TENTANG PENULIS .................................................................................... 126
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Daftar Gambar
The stages of asset recovery ........................................................................... 7
The stolen assets from the Abacha case sheltered in developed countries11
Illustration of the linkage (source: author) .................................................. 12
Level of Coerciveness and formality ........................................................... 66
The route of Multi Jurisdiction investigation of MN case . Error! Bookmark
not defined.
KPK strategy in international cooperation .................................................. 71
KPK MLA experiences as requesting and requested party ....................... 72
The result of Asset Recovery ........................................................................ 74
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Sambutan Direktur Jenderal Hukum dan
Perjanjian Internasional
Mencermati perkembangan Jurnal Opinio Juris yang telah
memasuki tahun ketiga sejak terbit pertama kali Oktober 2009, Tim
Pengelola Jurnal Opinio Juris telah melakukan beberapa penyempurnaan,
termasuk diantaranya mendapatkan nomor ISSN dari LIPI, pemuatan
Jurnal Opinio Juris secara elektronis di situs e-library Ditjen HPI,
pemilihan topik yang up to date dan peningkatan materi tulisan/artikel.
Langkah penyempurnaan tersebut, merupakan upaya yang
dilakukan secara terus menerus untuk menjadikan Jurnal Opinio Juris
sebagai sarana diseminasi informasi terkait isu-isu hukum dan perjanjian
internasional, sekaligus mendorong produktivitas dan kemampuan
menulis dari para staf di lingkungan Ditjen HPI. Selain itu Jurnal Opinio
Juris juga merupakan sarana untuk “sharing knowledge”, di antara para
praktisi, pemerhati, dan akademisi mengenai isu-isu hukum internasional
yang berkembang secara progresif .
Pada terbitan volume kali ini, inisiasi dan kerja sama yang
dilakukan Tim Pengelola Jurnal Opinion Juris dengan menggandeng
United Nations Office on Drugs and Crime (UNODC) perwakilan Indonesia
dengan tema khusus yakni “Pengembalian Aset Curian (Stolen Asset
Recovery)” perlu diberikan apresiasi. Pemilihan tema tersebut dirasa
sangat timely dan tepat, mengingat saat ini belum banyak terdapat tulisan
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atau jurnal yang membahas tema pengembalian aset curian secara khusus
dan menghimpun pendapat para ahli di Indonesia.
Stolen Asset Recovery menjadi isu yang dinilai sangat aktual dan
perlu didiseminasikan dan disosialisasikan secara lebih luas ke
masyarakat. Saat ini, hukum nasional Indonesia belum secara khusus
mengatur definisi pengembalian aset curian dan penanganannya secara
hukum. Pada tingkat regional, kurangnya saling pengertian dan kerja
sama antara negara-negara ASEAN dalam pengembalian aset curian yang
terkait dengan korupsi, belum berhasil menciptakan rezim hukum yang
efektif untuk pemberantasan korupsi di tingkat regional.
Diseminasi dan sosialisasi isu pengembalian aset curian di
Indonesia diperlukan untuk membentuk suatu pemahaman yang luas
berdasarkan praktik terbaik internasional yang dihimpun dari berbagai
perspektif aparat penegak hukum dan kalangan akademisi. Di samping
itu, kesiapan sistem hukum Indonesia dan kapasitasnya untuk
menangani masalah pengembalian aset curian tersebut juga perlu untuk
ditingkatkan. Untuk itu kupasan pemikiran dan pandangan dari berbagai
pemangku kepentingan baik dari kalangan akademisi, praktisi maupun
pembuat kebijakan sebagai tema khusus dalam terbitan Jurnal Opinio
Juris kali ini diharapkan dapat menjadi sumbangsih bagi upaya
diseminasi dan pemahaman mengenai isu pengembalian aset curian
diberbagai kalangan.
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JURNAL OPINIO JURIS
Secara khusus apresiasi disampaikan kepada pihak UNODC
perwakilan Indonesia atas kontribusinya pada terbitan edisi Jurnal
Opinio Juris kali ini. Selama ini UNODC perwakilan Indonesia telah
secara
aktif
mendiseminasikan
best
practices
penanganan
isu
pengembalian aset curian di berbagai negara, termasuk ketentuan
internasional yang berlaku kepada para pemangku kepentingan di
Indonesia.
Akhirnya,
kami
berharap
Jurnal
Opinio
Juris
ini
dapat
memberikan informasi dan manfaat bagi peningkatan pemahaman
terhadap hukum dan perjanjian internasional.
Selamat membaca.
Linggawaty Hakim
Direktur Jenderal
Hukum dan Perjanjian Internasional
Kementerian Luar Negeri RI
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Sambutan Country Manager UNODC Indonesia
All across the developing world, the demand for recovery of assets
stolen and stashed abroad is poised to become as popular and urgent a
moment, as the fight against corruption today is. Nations, poor and those
getting out of poverty have lost valuable national assets due to corruption
and illegal activities of their citizens in high places. The time has come not
only to punish such unscrupulous leaders, but also to get back and use for
the countries development, money illegally secured abroad by them. It’s
payback time now!
The foresight of the framers of the United Nations Convention
against Corruption 2003 (UNCAC), helped introduce asset recovery as
one of the pillars of this legal agreement. Thus, asset recovery today
receives equal importance with other key pillars of the UNCAC like
prevention, law enforcement and international cooperation. Invariably in
all reviews of the UNCAC implementation, the spotlight is on the chapter
on asset recovery. NGOs and the media and popular movements across
the globe are on a daily basis challenging governments to show results on
this front. A similar pressure is now mounting within those states that
harbour through their financial institutions such stolen assets - to freeze
and repatriate it to countries that have lost it.
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JURNAL OPINIO JURIS
Indonesia is one among the nations which has also lost a lot of
money to corruption and fraud perpetuated by people in high places.
Indonesian money today lies scattered in banks and shell companies
around the world. While, the will to seize and recover this money is very
much seen, it is common knowledge that this task is not an easy one.
Several hurdles have to be crossed to get to that money, which includes;
navigating diverse legal systems and jurisdictions, overcoming barriers of
language, understanding peculiarities of processes and procedures in
different countries and all this usually takes a long time. While these are
some of the challenges faced abroad, the challenges within the country are
no less daunting. Primarily we see coordination problems between the
multiple agencies involved in asset recovery combined with inadequate
expertise among staff who handles such matters.
Of course, the situation is fast improving. Countries are today
more cooperative than before with each other on matters of countering
corruption and return of stolen assets. Bilateral, regional and multilateral
initiatives have sprung up and law enforcement agencies of different
countries amongst themselves, have internationally developed informal
and formal networks to assist their work.
My organization, United Nations Office on Drugs and Crime
(UNODC), as mandated by the UNCAC has been at the forefront of
providing assistance to countries facing the challenge of following,
freezing, seizing and repatriating stolen assets. Under a joint programme
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with the World Bank, UNODC launched the Stolen Assets Recovery
Initiative (StAR). Indonesia was one of the first countries to join this
initiative. Several sets of training programmes have been carried out over
the last five years under this initiative for law enforcement officers and
judges in Indonesia apart from offering advice in several cases and also
facilitating contact with authorities and experts from countries often
receiving the stolen assets. In addition, UNODC in Indonesia has held
several dozens of trainings related to anti-corruption, financial crimes,
asset tracing and recovery and mutual legal assistance. While most of this
trainings have been integrated i.e., held jointly for officers from several
agencies, other multi-stakeholder brain storming sessions just to examine
where the problem is and what can be done have also been organised.
We have no doubt that sooner rather than later asset recovery will
work much better with far more awareness of processes and expertise in
investigations and all the budding international cooperation initiatives.
Ultimately the real punishment of the denial of safe havens for corruptors
and depriving them of their money will become a reality.
Through this edition of Jurnal Opinio Juris, the Ministry of Foreign
Affairs, that has been at various times, leading, coordinating and assisting
in recovery of Indonesia’s stolen assets are taking this struggle a step
higher. Through this edition the Ministry is spreading to a much wider
audience an understanding of all aspects of this challenge and calling
upon all to work together to defeat the forces of corruption. I congratulate
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the Ministry of Foreign Affairs on this bold and timely initiative and
pledge the full support of UNODC to this efforts.
Ajit Joy
Country Manager
United Nations Office on Drugs and Crime (UNODC)
Indonesia
x
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Pengantar Redaksi
Seiring dengan berkembangnya Jurnal Opinio Juris, berbagai
upaya berkesinambungan terus dilakukan Tim Redaksi untuk melakukan
perbaikan, pembenahan dan penyempurnaan pada substansi maupun
sajian Jurnal Opinio Juris, seperti pelatihan pengelolaan jurnal, proses
menuju perolehan status akreditasi dari Lembaga Ilmu Pengetahuan
Indonesia serta memperoleh Mitra Bestari guna menyempurnakan
kualitas artikel dalam Jurnal ini. Dalam kaitan ini Tim Pengelola Jurnal
Opinio Juris juga telah mengadakan kegiatan pelatihan pengelolaan dan
penulisan Jurnal Ilmiah pada bulan April 2012 di Semarang dengan
mengundang narasumber dari LIPI, UGM, dan Undip. Kegiatan tersebut
dimaksudkan untuk meningkatkan kualitas pengelolaan Jurnal Opinio
Juris bagi Tim Pengelola Jurnal Opinio Juris, termasuk meningkatkan
teknik penulisan dalam menyusun artikel yang akan dimuat pada Jurnal
Ilmiah.
Jurnal Opinio Juris telah terbit dalam 11 edisi sejak pertama kali
diterbitkan pada Oktober 2009. Beberapa upaya peningkatan yang telah
dilakukan seperti penyempurnaan materi muatan artikel pada Jurnal,
tampilan Jurnal Opinio Juris dalam bentuk e-journal yang dapat dibaca
melalui di website http://pustakahpi.kemlu.go.id, hingga diperolehnya
Nomor
Seri
Standar
Internasional
(International
Standard
Serial
Number/ISSN) sejak Januari 2011.
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Pada volume 11 tahun 2012 ini, Redaksi bekerja sama dengan
United Nations Office on Drugs and Crime (UNODC) menurunkan sejumlah
artikel dengan mengambil tema Pengembalian Aset Curian (Stolen Asset
Recovery). Pada volume ini, Jurnal Opinio Juris menghimpun tulisan dari
berbagai
perspektif,
seperti
aparat
penegak
hukum
(Kejaksaan,
Kepolisian, KPK), praktisi dan kalangan akademisi. Selain itu, penerbitan
Jurnal Opinio Juris edisi ini dapat menjadi sarana yang tepat untuk
mengenalkan Jurnal Opinio Juris kepada khalayak yang lebih luas
dengan tema dan para kontributor yang berbobot.
Pada kesempatan ini, redaksi Opinio Juris juga hendak mengajak
para pembaca untuk turut berkontribusi serta memberikan saran dan
masukannya demi peningkatan kualitas Opinio Juris di masa mendatang
melalui email [email protected].
Akhir kata, Redaksi Opinio Juris berharap agar jurnal ini dapat
menjadi sarana dalam menyebarluaskan berbagai informasi, wacana dan
wadah sumbangsih pemikiran di bidang hukum dan perjanjian
internasional yang berkaitan dengan pelaksanaan hubungan luar negeri.
Terima kasih dan selamat membaca!
Redaksi Opinio Juris
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ASSET RECOVERY: THE ENDLESS FIGHT
Paku Utama
Abstrak
Dalam perjuangan melawan korupsi, pengembalian aset merupakan isu yang
amat penting untuk dipahami, baik secara teori, maupun dalam hal
pelaksanaannya di lapangan. Tulisan ini menilik isu pengembalian aset,
mengungkapkan hambatan-hambatan yang saat ini ditemui dalam upaya
pengembalian aset, termasuk memberi penjabaran mengenai peran dan cara kerja
gatekeepers, aktor yang dapat menghambat upaya asset recovery. Beranjak dari
hambatan-hambatan tersebut, tulisan ini akan menawarkan rekomendasi bagi
keberhasilan upaya pengembalian aset, yang di antaranya mencakup pentingnya
peningkatan kapasitas para penyidik dan penegak hukum serta kerja sama yang
didasari komitmen yang lebih baik dari stakeholders terkait, baik di lingkup
nasional maupun internasional.
Kata kunci: gatekeepers, cooperation, UNCAC, non-conviction based forfeitures,
money-laundering
Corruption is a creature, a beast that we must tame, and asset recovery is
one of the mechanisms to domesticate this beast. –Paku Utama
Introduction
The expansion of new global markets, trade and finance, as well as
telecommunications and travel, have fostered economic growth and
allowed many to prosper, but have also presented criminals and corrupt
opportunists the ability to exploit globalisation’s gains with impunity in
many cases.1 Furthermore, corruption stunts economic development as
foreign direct investment is discouraged and local businesses often find it
1 See UNODC The Globalisation of Crime: a Transnational Organised Crime Threat
Assessment (2010) ii (hereafter Globalisation of Crime).
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impossible to overcome extortive fees for licenses or ‘protection’ that are
imposed by corrupt officials.2 Corrupt regimes, officials and business
practices, as well as common crime, sustain and enable each other to
further retard development and entrench ever more complex forms of
corruption, forming a positive feedback loop with decidedly negative
consequences. However, while its effects are often most evident at the
national level, corruption constitutes a transnational problem. Its effects
spread throughout the globe, penetrating countless jurisdictions, while no
national instruments have proven capable of eradicating it.3 This
necessitates the development of more effective international mechanisms,
aiming to mitigate and eventually stamp out corruption and illicit
transnational financial flows and transactions.
Past experience provides numerous examples of leaders who were
deposed by their people after abusing their authority, failing to govern
responsibility, and exploiting national resources for their own interest
through illicit and corrupt activities. Often times, even the most popular
or benevolent regimes become corrupt after extended periods of rule,
fostering complacency and apathy, as corruption becomes so prevalent
that transparency comes to be viewed as the exception in many cases.
The recent case of Egypt exemplifies this. In January 2011, Global
Financial Integrity estimated that between 2000 and 2008, Egyptian
leaders and corrupt officials misappropriated and embezzled USD 57.2
2
See UNDP Pacific Human Development Report: Tackling Corruption, Transforming
Lives (2008) v-vi.
3
See Patrick Glynn, Stephen J. Kobrin, and Moises Naim The Globalisation of
Corruption (1997) 1, available at
http://www.iie.com/publications/chapters_preview/12/1iie2334.pdf, accessed 30
September 2011. See Robert Leventhal International Legal Standards on Corruption
(2008) 203 Proceedings of the Annual Meeting of American Society of International Law,
Vol. 102, available at http://www.jstor.org/stable/25660291, accessed 19 August 2011.
See also J. P. Olivier de Sardan A Moral Economy of Corruption in Africa? (1999) 50 The
Journal of Modern African Studies, Vol. 37, No. 1, available at
http://www.jstor.org/stable/161467, accessed 19 august 2011. See also Robert S. Leiken
Controlling the Global Corruption Epidemic (1997) 61 Foreign Policy, No. 105,
available at http://www.jstor.org/stable/1148973, accessed 19 August 2011.
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billion by means of various illicit financial transactions.4 Specifically,
allegations of corruption were levelled against Egyptian President Hosni
Mubarak, his close associates, and his family regarding the vast majority
of these stolen funds and assets.5
Illicit capital flight from developing countries, such as Egypt
under Mubarak, not only victimises the most vulnerable elements of
society, but also exacerbates tensions between the underdeveloped and
the wealthier communities, and stunts international development and
foreign investment.6 Unfortunately, while international trade and
development offer new and important opportunities to many vulnerable
populations throughout the globe, the increasing scope and sophistication
of the international financial system allows corrupt officials and
gatekeepers7 to more effectively derail these efforts for personal gain.
After corrupt officials attain their ill-gotten gains by any number of
mechanisms, gatekeepers can easily exploit grey areas, gaps, and
loopholes within the inordinately large international financial system to
secure these assets using their expert knowledge of the relevant technical
processes.
Dev Kar and Karly Curcio Illicit Financial Flows from Developing Countries: 20002009 Update with a Focus on Asia (2011) 40 – 52 Global Financial Integrity Report.
5
UNCAC Coalition Call for action on wealth illicitly transferred from Egypt, available at
http://www.uncaccoalition.org/en/home/134-coalition-calls-for-action-stolen-assets-inegypt.html, accessed 25 August 2011.
6 Every year between US$ 850-1000 billion from poor countries vanishes without
a trace, secured in tax havens or rich countries. See Kristina Fröberg and Attiya
Waris Bringing the Billions Back: How Africa and Europe can end Illicit Capital Flight
(2011) 7 – 37, available at
http://www.forumsyd.org/upload/Bringing%20the%20billions%20back.pdf,
accessed 4 October 2011.
7
There is no single definition of gatekeepers, but the FATF briefly specifies gatekeepers
as ‘designated non-financial businesses and professions’, including lawyers, notaries, real
estate agents, trust, casino, accountants, and other independent legal professionals who
perform the role of a trusted third party. See Kevin L. Shepherd Guardians at the Gate:
The Gatekeeper Initiative and the Risk-Based Approach for Transactional Lawyers
(2009) 611 Real Property, Trust, and Estate Journal. See the FATF 40
Recommendations, Recommendation 12. See also FATF Risk-Based Approach Guidance
for Legal Professionals (2008) para. 11.
4
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Jurnal Opinio Juris Edition on Asset Recovery, thus, will
scrutinise the problems of asset recovery in Indonesia. It tries to fill the
gap, tailoring the academic and practitioners’ perspectives, in
understanding between the (normative) theory of asset recovery and its
implementation in Indonesia. These special editions will be divided into
two editions. The first edition focuses on the theory, regulations, and
practical challenges, and the second edition focuses on the obstacles and
the implementation of asset recovery on a case-by-case basis in Indonesia
which both are observed from the practitioners’ perspectives. I hope this
journal, accordingly, can be locally and internationally considered as one
of the sources and guidelines to study asset recovery issues in Indonesia.
Overview of Asset Recovery: a Difficult Process?
Asset recovery has emerged as a major global concern. The most
recent international convention targeting corruption, the United Nations
Convention against Corruption, emphasises asset recovery as one of its
primary principles, which all States Parties should endeavour to support.8
Novriady Erman, Associate for UNODC Indonesia, distinguishes how
International community tackles corruption; anti-corruption and anti-money
laundering measures have been specifically designed to support the asset recovery
mechanism.
This broad overview of modern transnational corruption and its
general structure necessitates the law enforcement to scrutinise asset
recovery’s matters in Indonesia. Indonesia, on the other hand, does not
have a sufficient capacity to trace, conduct proceeding, and repatriate
these stolen assets.
How many success stories which can be learnt from our experience?
Amien Sunaryadi and Dayu Nirma Amurwanti, senior officer and member of
the Governance and Anti-Corruption (GAC) Team of the World Bank, examine
how the Indonesian past asset recovery effort can be reflected into the present and
future strategic planning in Indonesia. We had a success story in recovering the
8
UNCAC, art. 1 (b), which explains that asset recovery is one of its main purposes. See
also, art. 51, which underscores that asset recovery is a fundamental principal of the
Convention.
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looted assets, recovering USD $76 million from 17 deposits in Singapore, during
the case on Kartika Ratna Thahir v Pertamina. The present cases as observed by
Amien and Dayu demonstrate that the success rate from high profile of
international cases is decreasing; Bank Indonesia liquidity funds (BLBI) –
misused during the 1998 financial crises, and scams in the state owned BNI and
Mandiri. In all of the banking related cases, Indonesia only managed to recover
USD $3 million from a total of USD $280 million allegedly stolen. The question
is why did we obtain the success story in recovering stolen assets during the most
corrupt regime of our country under Soeharto?
Ngozi N. Okonjo-Iweala, Executive Director of the World Bank,
and Yury Fedotov, Managing Director of the United Nations Office on
Drugs and Crime (UNODC), emphasise that the recovery of stolen assets
is a difficult process, even under ideal circumstances, and is routinely
complicated by conditions in developing or failing states, such as
systemic corruption and limited locally by available resources. Both
officials call for a full range of flexible and adaptable measures to be made
available to support investigators facing such complex logistical and
structural challenges. Available measures must at a minimum allow for
asset recovery agents to seek criminal and non-criminal confiscations, as
well as civil actions and locally viable alternatives in relevant
jurisdictions.9 The importance of these efforts cannot be understated,
although corruption as organised crime frequently appears to be a
victimless crime as there are no immediately apparent individual victims,
misappropriated funds or kickbacks to initiate otherwise illegal projects,
can cause tremendous harm to entire populations.10
Jean-Pierre Brun, Larissa Gray, Clive Scott, and Kevin Stephenson Asset Recovery
Handbook: A Guide for Practitioners (2011) xi (hereafter, Asset Recovery Handbook).
10 See UNODC UN Guides for Anti-Corruption Policies (2003) 25. See MarianoFlorentino Cuéllar The Tenuous Relationship between the Fight against Money
Laundering and the Disruption of Criminal Finance (2003) 365 The Journal of Criminal
Law and Criminology (1973) Vol. 93, No. 2/3, available at
http://www.jstor.org/stable/1144319, accessed 19 August 2011. See also
UNODC Globalisation of Crime (2010) 25.
9
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Prof. Hikmahanto Juwana, Ajisatria Suleiman, and Harjo
Winoto, legal scholars from university of Indonesia, observe how the
development of international law regulates the implementation of asset recovery.
Mutual legal assistance as one of the most effective tools is highlighted by looking
at Indonesia domestic regulations. They study the shortcoming of its
implementation in Indonesia and scrutinise how solutions can be improved to
overcome some technical issues such as MLA treaty implementation, recourses of
proceeding, and political consideration.
No uniform process can be utilised in asset recovery efforts. A one
size fits all approach cannot effectively navigate the challenges of securing
local and international cooperation between investigators and
prosecutors, cooperative intelligence sharing, or the management of assets
for repatriation. Asset recovery is a complex and multi-disciplinary
process, often involving criminal and civil proceedings, as well as nonconviction based (NCB) forfeitures, and other legal mechanisms to
repatriate assets that were wilfully divided and hidden in a manner
aimed at obstructing recovery. Technical issues can also complicate asset
recovery efforts. Issues ranging from terminology, procedural differences,
or differing structures regarding the delegation of duties can complicate
collaborative efforts.11 Faced with these challenges, investigators must
approach cases flexibly and with a results-oriented outlook, focusing on
narrow and staged objectives, with the ultimate aim of securing and
repatriating the stolen assets.
Corruption is network and, thus, we need network to fight it back. See
how Giri Suprapdiono, the KPK international cooperation specialist, analyses
how international cooperation becomes a significant issue in recovering stolen
assets. Formal cooperation is no longer needed if we can achieve our target and
overcome the obstacles. Every so often, informal cooperation can be the
breakthrough when the formal-technical cooperation becomes hard to handle,
hampering the whole cooperation. KPK caught Muhammad Nazaruddin as
output, proving how formal and informal cooperation can be maximised in
conducting asset recovery.
11
6
Brun, et al., Asset Recovery Handbook, 20.
JURNAL OPINIO JURIS
Stages of Asset Recovery
1
3
2
4
The stages of asset recovery
1. Identify and Trace
During the preliminary investigative phase, the aim is to gather
and assess relevant evidence, and to locate any and all assets hidden
domestically or abroad. If investigators fail to identify stolen assets during
the preliminary phase, then these assets can be relocated once the subjects
of the investigation are made aware that their other holdings are being
frozen, making the assets even more difficult, if not impossible to recover.
Such investigations are most commonly spurred by reports of suspicious
activities by financial intelligence units and other auditory bodies,
suspicious financial disclosures, intelligence sharing efforts, or even
something as simple as a media exposé.12 After an investigation is
initiated, investigators must coordinate with officers and investigators
abroad to discreetly gather evidence and identify suspect accounts before
freezing these assets and launching public inquiries.
Reda Manthovani, one of international specialist of Indonesian
Attorney General Office and now is Head of Cilegon District Prosecution Office,
highlights the comparative mechanism of obtaining evidence abroad by looking
the Indonesian Penal Code, the most recent MLA law, and scrutinising the role of
Central Authority. He mentions NCB Interpol (Indonesia), in the past, could
carry the freezing of corruptors’ abroad account by having coordination with
abroad Interpol, but now such request to Hong Kong can only be requested by the
Minister of Law and Human Rights. Interestingly, this concept is not absolute
12
See above, 20-22.
7
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where, for instance, The Indonesian National Police/NCB Interpol Polri/NCBInterpol Indonesia has an an occasion, through the Indonesian Embassy in Bern
requested the Swiss Authority to freeze the account of an Indonesian company
based in Switzerland. The Swiss Government acted on the request but the release
of the fund had to be based on a court order.
2. Freeze and Secure the Assets
After identification, investigators must freeze all suspected assets
and accounts to ensure that they are not relocated to new or previously
unidentified holdings. This effort requires careful coordination with
relevant courts in order to secure cooperation. After relevant bodies
authorise action, investigators and law enforcement officials can move to
freeze the assets in question, and then begin working with the relevant
courts to secure and repatriate assets in later stages of the investigation.13
The authority to issue a freeze order is dependent upon national and
jurisdictional laws. In civil law jurisdictions, prosecutors, investigating
magistrates, and related law enforcement agencies can be issued by the
authority to freeze suspected assets, even without judicial authorisation in
some cases.14 However, in common law jurisdictions, freezing assets
requires judicial authorisation.15 Numerous informal and formal
international mechanisms can be employed to help overcome the
obstacles posed by jurisdictional and other technical issues, including
mutual legal assistance, extradition agreements, and court orders.
3. Legal Proceedings
Legal proceedings can be conducted in the country in which the
corrupt official or gatekeepers reside, or in the territory in which the
assets in question are secured. Similar leeway is given regarding the
manner of the proceedings, which can take the form of criminal or civil
actions involving orders of confiscation and compensation, as well as
13
Phyllis Atkinson, “Introduction,” in Tracing Stolen Assets: A Practitioner’s Handbook,
ed. Phyllis Atkinson, (Basel: Basel Institute on Governance, 2009), 20.
14
Brun, et al., Asset Recovery Handbook, 6.
15
See above.
8
JURNAL OPINIO JURIS
(NCB) forfeitures.16 UNCAC aims to maximise the flexibility of
prosecutors, allowing legal proceedings to be ordered by domestic or
foreign courts, as the requesting or requested State Party under the
convention.17 This allows for parties to accede authority to one another if
a situation exists in which a corrupt individual may wield too much
influence within the domestic context to be held accountable for his
crimes. UNCAC also urges States Party to implement frameworks
allowing for NCB forfeitures, allowing for the trial of the stolen assets,
and not the officials or gatekeepers responsible for the theft. NCB
forfeitures take place in civil court, bypassing the need for a criminal
conviction that would be necessary for a criminal forfeiture.18 NCB
forfeitures are widely considered the most effective means of securing
stolen assets as any jurisdictional or political boundaries, immunities, or
even the escape or death of the criminal become irrelevant, as the
criminal’s identity is unrelated to the NCB forfeiture process and the only
legal entity on trial are the assets themselves.19
4. Repatriation
During this final stage, assets, instrumentalities of crime, or
proceeds of crimes confiscated by a requested state should be repatriated
to their prior legitimate owners.20 The requested State Party may reduce
the assets by deducting a value covering any expenses associated with the
investigation, judicial proceedings, and any other costs connected with
the asset recovery process.21
16
See above, 7.
UNCAC, art. 55 (1).
18 Theodore S. Greenberg, Linda M. Samuel, Wingate Grant, and Larissa Gray,
Stolen Asset Recovery: A Good Practices Guide for Non-Conviction Based Asset
Forfeiture, (Washington: World Bank Publication, 2009), 21.
19
An example of NCB forfeiture would be, Indonesia v. 20 Ferraris and illicit banking
group, not Indonesia v. Mr. X, who owns 20 Ferraris, and illicit banking group.
20
UNCAC, art. 57 (1), “Property confiscated by a State Party pursuant to article 31 or 55
of this Convention shall be disposed of, including by return to its prior legitimate
owners…”
21
UNCAC, art. 57 (4).
17
9
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Gretta Fenner Zinkernagel (Managing Director of the Basel Institute
on Governance) and Anja Roth (officer at International Centre for Asset
Recovery, ICAR) examine the international practical obstacles in asset recovery
mechanism. They highlight the problems and the way in how international
community must overcome the technical, political economy barriers, and from
development policy perspective
The Stolen Assets Flowing from Developing Countries to
Developed Countries
In the majority of transnational corruption and money laundering
cases, developing countries are victimised as resources and assets are
hidden and secured in major banks in the developed world, which serve
as havens for the ill-gotten gains of corruption.22 By examining cases such
as those of Sani Abacha, Saddam Hussein, Augusto Pinochet, Ferdinand
Marcos, Vladimiro Montesinos, and Soeharto, we can observe a pattern in
which developing and low-income countries are consistently victimised.23
The majorities within these countries, who suffer from poverty,
systematic rights abuses, and possess little or no access to institutions that
can provide recourse, bear the brunt of these financial crimes as critical
funds are diverted and embezzled from development and public projects.
Meanwhile, minorities who already monopolise governmental and social
authority derive even greater wealth by abusing their authority as
professionals, and institutions in the developed world launder and
maintain possession of their ill-gotten gains.
Many developed countries and territories that are ‘free from
corruption,’ such as Switzerland,24 Liechtenstein, the United Kingdom,
See Ivan Pavletic The Political Economy of Asset Recovery Processes: International
Centre for Asset Recovery: Working Paper Series No. 7, (Basel: Basel Institute on
Governance, 2009); and Fröberg, and Waris, “Bringing the Billions Back: How
Africa and Europe can End Illicit Capital Flight,” 10-20.
23
UNODC and the World Bank Group (WBG), Stolen Asset Recovery (StAR) Initiative:
Challenges, Opportunities, and Action Plan, (2007), 6-17.
24
During the asset recovery process of the Sani Abacha case, hundreds of millions of
dollars were frozen and seized in Switzerland and then repatriated to Nigeria. Switzerland
has also returned stolen assets to a number of other states in similar corruption cases,
including Argentina, Brazil, France, Germany, Italy, Peru, Ukraine, Spain, and Russia. In
22
10
JURNAL OPINIO JURIS
France, Guernsey, Luxembourg, Hong Kong, and the United States,
which all have improved anti-corruption measures, persist in sheltering
the ill-gotten proceeds of corruption. According to the one financial
expert, Africa loses 25 percent of its gross domestic product (GDP),
roughly USD 148 billion, annually to corruption. This estimate represents
a figure more than ten times greater than figures for incoming foreign
aid.25 This figure from the Sani Abacha case shows the amount of stolen
assets that were hidden in the developed countries:26
Country
Frozen
Repatriation
Total
Switzerland
$ 65 M
$505 M
$570 M
Luxembourg
$600 M
Liechtenstein
$193 M
$ 7M
$200 M
Jersey
$ 20 M
$180 M
$200 M
UK
$200 M
Total
$1,078 M
$600 M
$200 M
$692 M
1,770 M
The stolen assets from the Abacha case sheltered in developed countries
light of Switzerland’s cooperative efforts, Bernard Bertosa highlights the comparative
difficulties that investigators and prosecutors face when trying to secure similar
cooperation from entities in the United States or United Kingdom. See, Bernard Bertosa,
“What Makes Assets Recovery so Difficult in Practice?,” in Recovering Stolen Assets, ed.
Mark Pieth, (Bern: Peter Lang AG, Internationaler Verlag der Wissenschaften, 2008), 20.
25
Despite the influx of billions of dollars in foreign aid, many African nations have
witnessed a decline in their overall wealth and income levels over the past 15 years. This
trend is evident across the continent, regardless of divergent economic, environmental,
and social factors, with the exception of poor governance practices. See Nuhu Ribadu,
“Challenges and Opportunities of Asset Recovery in a Developing Economy,” in
Recovering Stolen Assets, ed. Mark Pieth, (Bern: Peter Lang AG, Internationaler Verlag
der Wissenschaften, 2008), 29.
26
Anti-Corruption Commission of Indonesia (KPK), Stolen Asset Recovery, delivered at a
public seminar at the Faculty of Law, University of Indonesia, Jakarta, Indonesia, 15
November 2007. See also Basel Making the Connection (2011) 14.
11
JURNAL OPINIO JURIS
Asset Recovery vs Money Laundering
Simply put, money laundering is the act of an entity concealing
the true source and ownership of wealth or assets derived from illicit
activities, where on the other hand asset recovery is the act of tracking
and seizing these laundered assets, and returning them to their rightful
owners; it is an active response from law enforcement targeting
transnational financial crime.27 Gatekeepers are the primary agents in the
money laundering process and are responsible for the commission of the
financial crime itself after being supplied with the proceeds of a predicate
crime commissioned by another actor. While the corrupt official or
criminal responsible for the commission of the predicate crime is often the
ultimate figure of interest in the greater investigation, asset recovery more
narrowly focuses on seizing and returning what was stolen.
Illustration of the linkage (source: author)
Linkages within the Money Laundering and Asset Recovery
Process:
1. Money laundering is dependent upon the commission of a
predicate crime that supplies the assets to be laundered.
2. Money laundering requires gatekeepers with expert knowledge of
financial mechanism. In addition to their expertise, gatekeepers
27 Basel Institute on Governance, and the International Centre for Asset Recovery,
Development Assistance, Asset Recovery and Money Laundering: Making the
Connection, (2011), 16.
12
JURNAL OPINIO JURIS
are required to act as an intermediary and distance commission of
the predicate crime from the crime’s proceeds.28
3. Asset recovery arises in response to money laundering and is
generally led by investigators in countries from which assets have
been stolen and laundered.
The explanation above explains the causal links in the process of
money laundering and asset recovery, and by extension, demonstrates the
importance of understanding the methods and processes used by
gatekeepers as the architects and commissioners of the money laundering
process. Without specialised knowledge of these processes, investigators
would be unable to effectively track and recover stolen assets. At the
conceptual level, money laundering aims to achieve a ‘disconnect’
between a) the criminal and the proceeds of crime; b) the crime and the
proceeds of crime; and c) the criminal and his access to any proceeds.29
The criminal responsible for the predicate crime wants to separate himself
from any evidence or gains from his crime that could incriminate him,
while maintaining control and access to those gains. To achieve the
desired disconnects, gatekeepers utilise a combination of structural and
institutional obstacles.30
Contemporary banking institutions are now able to move illgotten gains by using SWIFT31 and wire transfers, effectively laundering
28
In principle, money laundering only requires a launderer to perform the act of
laundering. However, in cases involving vast sums of money being moved
transnationally, gatekeepers and their professional skills are also required to avoid public
scrutiny or detection by investigators and internal auditors.
29 These disconnects allow the criminal to safely enjoy of fruits of their crime. See
Stephen Baker, and Ed Shorrock, “Gatekeepers, Corporate Structures and Their
Role in Money Laundering,” in Tracing Stolen Assets: A Practitioner’s Handbook, ed.
Phyllis Atkinson, (Basel: Basel Institute on Governance, 2009), 81.
30 See above, 81.
31 Utilising a SWIFT code is the most convenient means of transferring
funds via bank accounts. “The system is maintained by the SWIFT company, and
Belgium-based, industry-owned cooperative, whose membership includes
various banking and financial institutions. The company provides standardised
messaging services and software to thousands of financial institutions
13
JURNAL OPINIO JURIS
ill-gotten gains into assets which can be sold and scattered throughout
world-icon stock exchanges, such as the Shanghai Stock Exchange, the
Hong Kong Stock Exchange, Wall Street, the London Stock Exchange, and
others.32 These stock exchanges, along with other available mechanisms,
give gatekeepers, a term denoting various financial or legal professionals
with special skills, knowledge, and access to the global financial system in
the employ of corrupt officials the ability to conceal their illegal assets. To
curb these illicit transactions, the international anti-corruption community
has developed many tools, instruments, regulations, and strategies
targeting corruption, money laundering, and illicit practices among
gatekeepers.33 In the recent assets recovery case involving General Sani
Abacha of Nigeria, an overwhelming amount of his assets, which were
obtained through corrupt practices, were securely dispersed and hidden
in banks within developed countries, despite the fact that these banks
allegedly adhere to the aforementioned anti-money laundering and anticorruption measures.34
Arinta Luthri Handini, investigator for KPK, identifies the link
between asset recovery efforts and money laundering, and examines how
gatekeepers utilise their expertise to conceal the proceeds of corruption. In order
to successfully trace and recover stolen assets, we need to understand how
gatekeepers utilise various money laundering mechanisms and offshore financial
centres. Her work highlights how gatekeepers operating in the private sector,
wilfully or unwittingly, use their expert knowledge of the international financial
throughout the globe and has effectively established the market standard for
transfers financial messaging.” Taken from a presentation by Davinder Billing
from the Australian Transaction Reports and Analysis Centre (AUSTRAC),
concerning SWIFT: Overview, delivered at the Jakarta Centre for Law
Enforcement Cooperation (JCLEC) Financial Investigation Course, Semarang,
Indonesia, 14th of August 2007.
32
See Phyllis Atkinson Introduction in Tracing Stolen Assets: A Practitioner’s Handbook
(2009) 19.
33
See Robert Leventhal International Legal Standards on Corruption (2008) 203 - 207
Proceedings of the Annual Meeting (American Society of International Law), Vol. 102,
available at http://www.jstor.org/stable/25660291, accessed 19 August 2011.
34
See Mark Pieth Recovering Stolen Assets – A New Issue in Recovering Stolen Assets,
ed. Mark Pieth, (2008) 5.
14
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system to facilitate corruption by helping corrupt leaders legitimate, secure, and
obfuscate the movement of the proceeds of corruption within the global banking
system. It also looks at responses and potential alternatives to curb gatekeeper’s
roles in the money laundering process.
Conclusion
Corruption as global phenomenon penetrates its problems to all
over the world. One of its crucial impacts is countries which assets have
been looted, cannot easily recover their assets. Asset recovery as a
breakthrough, thus, should be effectively utilised. Indonesia needs to
learn from its past experience, understanding its problem, enhancing its
cooperation, and examining how the ‘advanced’ issues such as
gatekeepers have significant potential in hampering its whole process.
Many experts note that even when the obligation already exists for
gatekeepers to report suspicious transactions, the number of reports is
often low.35 The key to enhance the effectiveness of asset recovery efforts
is not simply the augmentation of investigative bodies or the ardent
pursuit of corrupt officials, although these are both intuitive solutions.
Rather, the key to enhancing current capabilities is building transparency
and accountability in asset recovery related institutions (domestic and
abroad) and financial institutions.
By examining the asset recovery process in its entirety, it is
obvious that cooperation from among domestic institutions plays
significant and varied roles in Indonesia. It is also critical to build the
capacity of law enforcement and investigative bodies to deal with
financial crime, given the indispensable, role that gatekeepers play in the
initiation and management of illicit financial transactions.
However, we must also examine new alternatives, approaching
new solutions with the same creativity demonstrated by the corruptors if
35
It is possible that compliance may increase over the next several years, as many rules
regarding reporting and compliance have only been recently implemented. However,
without the assistance and cooperation of gatekeepers, efforts to detect and understand
money laundering schemes will continue to lag behind the criminal activities themselves.
See, FATF on Money Laundering, Report on Money Laundering Typologies 2003 – 2004,
(2004).
15
JURNAL OPINIO JURIS
we are to achieve lasting success. Improved training regimens for
investigators, and implementing management structures that offer
meaningful rewards and opportunities for officers and private sectors,
such as banking and financing institutions, which stand against
corruption, rather than merely earning them the title of ‘whistle-blower’
or ‘justice collaborator’, are small steps that could be independently
implemented even today. Meanwhile, efforts to conduct more advanced
investigation approach, such as corporate finance investigation, could be
effective avenues for future asset tracing recovery mechanism in
Indonesia. Be creative, think like the perpetrator, exploit your
imagination, and act scientifically; the best way tracing the looted assets.
To sum up, when the bad men combine, the good must associate. –
Edmund Burke.***
“ When men are pure, laws are useless; when men are corrupt,
laws are broken. ”
- Benjamin Disraeli 16
JURNAL OPINIO JURIS
THE ROLE OF INTERNATIONAL INSTRUMENTS IN
ASSET RECOVERY: WHAT CAN WE LEARN SO FAR?
Novriady Erman
Abstrak
Tulisan ini mendeskripsikan peran instrumen-instrumen internasional yang
digunakan dalam upaya membantu berbagai negara dalam pengembalian asetaset curian. Selanjutnya menjelaskan bagaimana berbagai instrumen dapat
menjadi manfaat bagi negara korban dalam proses pengembalian aset
sebagaimana telah diperlihatkan dalam beberapa praktek terbaik internasional.
Seyogyanya, belajar dari pengalaman, Indonesia dapat menggunakan beberapa
contoh yang bisa bermanfaat untuk upaya dalam pengembalian aset dan untuk
mempertimbangkan pembelajaran dari kisah-kisah kegagalan dan sukses.
Kata kunci: asset recovery, UNODC, World Bank, StAR Initiative, UNCAC
“People prefer to be put behind bars and keep their money than to stay free
without the money."
-The former Mafia Don Gaspare Motolo-
I.
INTRODUCTION
International community considers 3 (three) major imminent
problems that threaten the life of their nations, namely: corruption, drugs
and terrorism.1 They may not share same value as to the nature and
1
See Fifty-seventh General Assembly, Third Committee, Critical Links Between Crime,
Illicit Drugs, Corruption, and Terrorism: Revealed by 11 September Events, Third
Committee Told, Press Release of General Assembly GA/SHC/690, 1 October 2002;
Christopher Spencer, Global Issues of the Twenty-First Century and United Nations
Challenges, A Guide to Facts and Views on Major or Future Trends, Canadian
Department of Foreign Affairs and International Trade, 8 October 2011; Organized
crime and drug trafficking major threats to international peace and security, UNODC
17
JURNAL OPINIO JURIS
distinct character of each crime but concur similarity on the vast amount
of money involved within each circle of crime and the need to conceal the
proceed of crime. Above all, they pose as threat to security, economic and
social developments of which no single country can find itself capable to
stand alone to fight against those cause in absence of international
cooperation.2
A conclusion drawn from a report produced by the United Nations
Office on Drugs and Crime (UNODC) and the World Bank demonstrates
that corruption serves in the first place amongst the aforementioned three
causes for its total loss entailed to society.3 It, therefore, requires no
prolonged argument to eventually come into conclusion that corruption
has been the single greatest obstacle to economic growth.4 On the other
head tells Security Council. Accessible at
http://www.unodc.org/unodc/en/frontpage/2011/November/organized-crime-and-drugtrafficking-major-threats-to-international-peace-and-security.html
2
Gary Lewis, Responding to the Security Threat Posed by Transnational Organized
Crime in East Asia and The Pacific, Speech to the International Serious and Organized
Crime Conference, Melbourne, Australia, 8 October 2010. Accessible at
http://www.aic.gov.au/events/aic%20upcoming%20events/2010/~/media/conferences/201
0-isoc/presentations/lewis_address.pdf; For further detail please see the 2010
Transnational Organized Crime Threat Assessment Report on the Globalization of Crime
(TOCTA) prepared by United Nations Office on Drugs and Crime (UNODC). Accessible
at http://www.unodc.org/documents/data-andanalysis/tocta/TOCTA_Report_2010_low_res.pdf; Also see remarks by Ajit Joy,
UNODC Indonesia Country Manager, on Global Corruption and International Fight
Against Corruption, accessible at
http://www.unodc.org/documents/eastasiaandpacific/2009/11/youthconference/Global_Corruption.pdf
3
See Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities and Plans, the
World Bank, Washington: 2007.
4
Global Study on the Transfer of Funds of Illicit Origin, Especially Funds Derived From
Acts of Corruption” (report presented to the Ad Hoc Committee for the Negotiation of a
Convention Against Corruption, January 13–24, 2003). Accessible at
http://pustakahpi.kemlu.go.id/dir_dok/Global-study-on-the%20transfer-of%20funds-ofillicit-origin.pdf; Axel Drehel, et. al, Corruption Around the World: Evidence from A
Structural Model, University of Exeter, England, 8 June 2004; For further elaboration
please see Harry Seldadyo and Jakob de Haan, The Determinants of Corruption: A
Literature Survey and New Evidence, Paper Prepared for the 2006 EPCS Conference,
Turku, Findland, 20-23 April 2006. Accessible at
18
JURNAL OPINIO JURIS
hand, the World Bank affirms that countries which tackle corruption and
improve their rule of law can increase their national incomes by as much
as four times in the long term. However, this is a number which,
unfortunately, has never been materialized by any international aid
project in developing countries.5
The government and civil organizations produce a remarkable
US$100 billion value of foreign assistance for third world countries
annually. However, such number is much less compared to the total
annual money extorted and stolen from such countries which reaches
US$1 trillion.6 This may have been the reason that 54 countries, out of 193
countries, have actually become poorer than they were 15 years ago
despite of the presence of such billion dollars aid.7 In consequence, more
countries are collapsing and more donors are discouraged to pursue its
aid which eventually becomes the wake-up call for those countries in
need.
Ironically, while this looted asset is filling the bank account of
certain group of corrupt leaders and enrich their wealth formed as shares
in blue-chip companies, refined yachts and private jets, da vincidecorated villas and flats, and a line of fancy and super cars, it leaves
millions of their people to live less than US$2 each day which put them in
http://conferences.wcfia.harvard.edu/sites/projects.iq.harvard.edu/files/gov2126/files/seld
adyo_determinants_corruption.pdf
5
J. Smith, M. Pieth and G. Jorge, The Recovery of Stolen Assets: A Fundamental
Principle of the UN Convention Against Corruption, 2 CMI U4 Brief, February 2007, at
1; See publication by United Nations Development Program entitled Corruption and
Development: Anti Corruption Intervention for Poverty Reduction, Realization of MDGs
and Promoting Sustainable Development, New York, December 2008; Also see
Democracy in Caribbean and Latin America at
http://www.usaid.gov/our_work/democracy_and_governance/regions/lac/index.html
6
J. Smith, M. Pieth and G. Jorge, The Recovery of Stolen Assets: A Fundamental
Principle of the UN Convention Against Corruption, 2 CMI U4 Brief, February 2007, at
1; See http://www.fatf-gafi.org/pages/faq/moneylaundering/; Theodore S. Greenberg, et
al, Politically Exposed Persons, A Policy Paper on Strengthening Preventive Measures,
the World Bank, Washington, 2009; Stefaan Smis and Stephen Kingah, The Effectiveness
of International Rules and Efforts in the Recovery of Stolen Assets from Developing
Countries. Accessible at http://www.ecprnet.eu/databases/conferences/papers/265.pdf
7
Ibid.
19
JURNAL OPINIO JURIS
the lowest group of Human Development Index.8 Nonetheless, it is also
often forgotten that the theft of public funds is only made possible by the
involvement, and sometimes active encouragement, of financial services
firms in the North and South.9
Previously in 2002, the International Monetary Fund (IMF) study
estimated that between US$600 billion and US$1.8 trillion, equal to two to
five percent of the total world Gross Domestic Product, is illegally
laundered throughout the world each year in which mostly are derived
from corruption.10 In addition to this number, more than US$1 trillion is
paid in bribes each year as shown by the World Bank publication and this
figure does not even include amounts of public funds embezzled by high
rank government officials, which may set higher number should it be
included.11 This is not to mention the press reports out of Chile in 2006
which discovered 10 tons of gold stashed in a Hong Kong bank by the
8
For further discussion on this topic, please refer to Michael Nielsen, Democracy,
Corruption and Human Development, University of Aarhus, Denmark, 2000; Selcuk
Akcay, Corruption and Human Development, Cato Journal, Vol. 26, No.1, Turkey
(2006); UNDP Report on Tackling Corruption and Transforming Lives accessible at
http://www.undp.org.bd/info/HQ%20Publications/RHDR_Full_Report_Tackling_Corrupt
ion_Transforming_Lives.pdf; Reference shall also be made to interesting short article
published in the Economist accessible at
http://www.economist.com/blogs/dailychart/2011/12/corruption-and-development;
9
See Farzana Nawas, Recovering Stolen Assets: A Problem of Scope and Dimension,
Working Paper of International Transparency, Germany, 2011; For further reading, please
see Kari Heggstad and Odd-Helge Fjeldstad, How Banks Assist Capital Flight from
Africa: A Literature Review, CMI Report of NORAD Project, 2010 at
http://www.cmi.no/publications/file/3750-how-banks-assist-capital-flight-from-africa.pdf.
10
See Christina Jackson, Combating the new generation of money laundering:
regulations and agencies in the battle of compliance, avoidance, and prosecution in a
post-September 11 world, The Journal of High Technology Law, United States of
America, 1 July 2004; Financial Action Task Force on Money Laundering, Basic Facts
about Money Laundering (2003). Accessible at http://www.fatfgafi.org/MLaundering_en.htm; Also see John Walker, How Big is Global Money
Laundering, Journal of Money Laundering Control, Vol. 3, Issue 1 (1999), 25 37,
updated by author 2008.
11
See Article entitled The Cost of Corruption published by the World Bank at
http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:20190187~men
uPK:34457~pagePK:34370~piPK:34424~theSitePK:4607,00.html
20
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former dictator of Chile, Augusto Pinochet.12 It is worth noting as well
that Hosni Mubarak’s, Egypt former leader, net wealth is between US$40
billion and US$70 billion, more than that of Bill Gates is worth.13 Thus, it
is no surprise that many of the world’s most unstable and least-governed
states are also those with the highest levels of corruption.14
The unfavorable derivative impact of corrupt practices is the
increased opportunity for crime which requires willy-nilly, anticorruption measures to cope with this issue. Any meaningful solution to
the problem must account for the recovery of the assets derived from
corruption. The first notion that might appear on asset recovery initiative
can be solely related with economy.15 However, the World Bank and the
UNODC, through its Stolen Asset Recovery Project (StAR) initiative, are
of the opinion that the underlying rationale should be to help enforce the
rule of law. In addition, asset recovery as a measure of accountability is
an essential component to improve global security.16
On the other hand, aside from diligent work in law enforcement
agencies, ministries and financial intelligence units, utilization of
12
Supra note xi.
Elizabeth Johnson, What do we know about stolen assets in Middle East?,
Transparency International, 23 September 2011. Accessible at
http://blog.transparency.org/2011/09/23/what-do-we-know-about-stolen-assets-in-themiddle-east/
14
Mark V. Vlasic & Jenaen N. Noell, Fighting Corruption to Improve Global Security:
An Analysis of International Asset Recovery System, Yale Journal of International Affairs,
Summer 2010; See Governance, Corruption and Conflict, United States Institute of
Peace, Washington, 2010; For a more comprehensive review on this issue, please see
Ugur M, Dasgupta N (2011) Evidence on the economic growth impacts of corruption in
low-income countries and beyond: a systematic review. London: EPPI-Centre, Social
Science Research Unit, Institute of Education, University of London.
15
Ibid; Ivan Pavletic, the Political Economy of Asset Recovery Processes, Working Paper
Series No. 07, International Center for Asset Recovery, October 2009; Richard Dubourg
and Stephen Prichard, The Impact of Organized Crime in the UK: Revenues and
Economics and Social Cost and Criminal Assets Available for Seizure, The White Paper
on One Step Ahead: a 21st Century Strategy To Defeat Organised Crime, UK (2004).
16
Mark V. Vlasic & Jenaen N. Noell, Fighting Corruption to Improve Global Security:
An Analysis of International Asset Recovery System, Yale Journal of International Affairs,
Summer 2010.
13
21
JURNAL OPINIO JURIS
international instrument is imperative to be expanded to wider field in
asset recovery-related field. The present available resource, to this extent,
has only managed to recover US$4.9 billion in the last fifteen years.
Should this number is considered to be satisfactory, please recall that the
amount of money stolen has reached a range in trillion dollars which then
makes the recent success of asset recovery constitute only a minor
percentage. The process of asset recovery is complex, time consuming and
involves multiple countries since the stolen assets are mostly concealed in
foreign jurisdictions. As such, there is a clear need for concerted action on
a global level.17
In countries with devastating corruption level, there is always a
room for challenge on anti-corruption effort through legal and political
will.18 The StAR Initiative further notes that many developing countries
lack the capacity to prepare indictments, collect, preserve and present
evidence, properly adjudicate cases and obtain convictions, as well as
trace the proceeds of corruption and obtain valid freezing and
confiscation orders. More broadly, law enforcement’s limited capacity to
effectively prevent asset theft and recover stolen assets in an
internationally accepted manner has proven to be a great challenge
highlighting a need for technical and operational assistance.19
In addition to the progress thus far, it is hoped that the international
asset recovery movement will continue to follow its multifaceted
approach and through this approach, incorporate attention to best assist
the practitioner, and thus, best assist the developing world recover its
stolen assets. Thus, the question whether the glass is half-full or halfempty with regards to comprehensive attempt in international asset
17
See Paul L. Lee, A Renewed Focus on Foreign Corruption and Politically Exposed
Persons, The Banking Law Journal, Vol. 127 N0. 9, Washington, October 2010; Also see
http://www.interpol.int/Crime-areas/Corruption/International-asset-recovery.
18
Kevin M. Stephenson et. al., Barriers to Asset Recovery, An Analysis of the Key
Barriers and Recommendation for Action, World Bank, Washington, 2011.
19
Ibid; Also see publication by the Basel Institute for Governance entitled Capacity
Building on Asset Recovery in 2011 at
http://www.baselgovernance.org/fileadmin/docs/publications/books/Capacity_Building_i
n_Asset_Recovery.pdf; and, Marie Chene, Mutual Legal Assistance Treaties and Money
Laundering, U4 Helpdesk, 29 July 2008.
22
JURNAL OPINIO JURIS
recovery is no longer a complicated question to answer. This writing is
intended to provide reader with brief descriptive information on
measures under international instrument which has been undertaken in
relation to asset recovery and lesson learnt from two major stages in asset
recovery.
II.
MAJOR CONTRIBUTION OF INTERNATIONAL INSTRUMENT
The role and assistance as regulated and made available under
international instrument on asset recovery must be understood as non
law-enforcement initiative and hence involve merely non-coercive
measures.20 This leaves room for law enforcement measures such as, inter
alia, freezing and confiscation of the looted asset, fall under the exclusive
jurisdiction of municipal law of the respective state and subject to
execution by its law enforcement body. The following passage shall
provide brief overview of international instrument’s role in asset recovery
process which is divided into two major phases, namely: asset recovery
process and post asset recovery process. While the former phase includes
process on tracing the asset, freezing, confiscation and repatriation, the
latter process involves role on oversight toward the utilization of
proceeds of the asset recovery.
1. ASSET RECOVERY PROCESS
The following role of international instrument is a response toward
several major barriers in asset recovery process. In order to obtain a more
comprehensive understanding of such barriers, the author would suggest
reader to the latest thorough work of the World Bank and UNODC under
StAR Initiative on publication entitled, “Barriers to Asset Recovery: an
20
See Asset Recovery and Mutual Legal Assistance in Asia and the Pacific, Proceedings
of the 6th Regional Seminar on Making International Anti-Corruption Standards
Operational. Hosted by the Corruption Eradication Commission, Indonesia Asian
Development Bank, Organization for Economic Co-operation and Development in
cooperation with the Basel Institute on Governance. Held in Bali on 5-7 September 2007.
23
JURNAL OPINIO JURIS
Analysis of the Key Barriers and Recommendations for Action”.21 On the other
hand, for the mere purpose of this writing, the author would make
reference to one considerable barrier at each stage of asset recovery
process and how international instrument plays its role at the following
section.
Firstly, it is worth noting that one of the greatest obstacles in asset
recovery would be the ability to trace and locate the stolen assets. This
type of work involves more than just tracing through paper work but
goes beyond to the extent of using financial intelligence to reveal all traces
of the flow of money. This investigative work requires diligent and multifaceted effort since the trail of transactions that channels stolen assets into
bank accounts in Northern and Southern financial centers is helped by
actions of various skilled actors, knows as gatekeepers,22 in the entire
process. Secondly, due to lack of legal basis and lack of legal
understanding on asset recovery, jurisdiction where corruption proceeds
are located seems reluctant to recognize a foreign restraint order or
forfeiture judgment.
Thirdly, jurisdictions only allow confiscation of assets on the basis of
a criminal conviction. As stolen assets are frequently commingled with
legitimate assets through certain phases of money laundering, the burden
of proof for law enforcement to establish the criminal conviction between
the offense and the assets is often difficult. Lastly, some financial centers,
regardless of their origins, have been reluctant to repatriate assets to, or
even to cooperate with, countries due to concerns that the returned assets
will be another subject of corrupt practice hence expectation of its proper
utilization would be wasted.
1.1. Informal Legal Assistance
Article 14, Article 23 and Article 31 of UNCAC provide
requirements for the domestic regimes of States Parties to detect, identify,
21
Supra note xx.
For further reference on this issue, please see Paku Utama, Gatekeepers, Money
Laundering, and Asset Recovery: Piercing the Riddle, Opini Juris Kemlu, Vol.2, May –
August 2011, Jakarta.
22
24
JURNAL OPINIO JURIS
freeze, seize, and confiscate the proceeds, commingled proceeds,
instrumentalities, and intended instrumentalities of corruption.23 The
request from other country on such measures can be carried out by law
enforcement agencies either through informal or formal mechanism. The
former attempt is made through network of the corps be it police
institution or office of prosecutor and the latter is made through Mutual
Legal Assistance (MLA) mechanism. Therefore, any informal legal
assistance from law enforcement agencies outside formal channel of MLA
shall be considered as informal legal assistance.
Informal legal assistance request is initially made at the first phase
of investigation through direct communications between counterparts
such as financial intelligence units (FIUs) and law enforcement agencies
on data which are legally available to those agencies in their internal
databases. At this stage, the main objective of assistance sought is mostly
to collect information and intelligence which will be useful at the later
stage of asset recovery. With respect to this measure, international
instrument plays an important role to promote the network between law
enforcement agencies around the globe and to establish another new
network to fill the loop to strengthen the system. Reference to two
prominent networks shall be made to the Global Focal Point Initiative and
the Camden Assets Recovery Inter-Agency Network (CARIN).
The Global Focal Point Initiative24
Line of bureaucracy and lack of immediate action may cause law
enforcement officials to lose a money trail in their investigation hence
23
See Jean B. Weld, International Cooperation in the Recovery of Criminal Assets, the
146th International Training Course, Visiting Experts’ Papers. Accessible at
http://www.unafei.or.jp/english/pdf/RS_No83/No83_07VE_Weld2.pdf; Also see
publication by U4 entitled the Potential of UNCAC to combat illicit financial flow.
24
For detail information on this section, please refer to the following site
http://www.interpol.int/Crime-areas/Corruption/International-asset-recovery;
https://www.interpol.int/Public/corruption/StepsGoingForward.pdf,
http://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2011
-August-25-26/V1183994e.pdf; and, http://www1.worldbank.org/finance/star_site/arfocal-points.html.
25
JURNAL OPINIO JURIS
initiative to accelerate the tracing is imperative. The Global Focal Point
Initiative (GFPI) is established by the Interpol and StAR to respond to this
issue. It provides a secure contact database of law enforcement officials
available 24 hours a day, seven days a week, to respond to emergency
requests for assistance in asset recovery investigations. Its membership
consists of law enforcement and prosecutorial agencies, including many
anti-corruption bodies. The Interpol and StAR develop this initiative to
actively engage national law enforcement bodies in coordinated efforts to
trace, seize and return stolen assets to the country of origin and to
develop information and evidence of criminal conduct related to offenses
as described under UNCAC.
The concept does not merely cope with asset recovery issue but also
to wider framework on anti-corruption under a concept known as
UMBRA. Under this concept, member countries are enabled to exchange
corruption-based information and best practices in the fight against
corruption. Furthermore, it develops a network of specialist contact point
that member countries can call upon for technical assistance in the area of
anti-corruption enforcement and will help liaise, where appropriate, with
Central Authorities and other agencies as documents and information are
needed in an evidential form for admission in a court or other
proceedings.
This communication tool includes comprehensive data from
around 100 Interpol member countries on contact details for initial
inquiries; key offices involved in foreign stolen asset recovery; the
different types of requests required to initiate assistance; the types of
assistance available for Mutual Legal Assistance requests (MLA);
evidence needed to open criminal investigations or initiate civil action
regarding stolen or embezzled assets; the type of information needed to
obtain assistance in identifying, tracing, or seizing stolen assets; and the
countries that have the authority to enforce foreign forfeiture judgments.
African and Asian countries have found this platform beneficial since it
successfully contributes to their ongoing asset recovery cases to obtain
more information on funds that have been transferred abroad.
The legal spontaneous disclosure of lead and relevant public
information is an important objective. These informal interchanges will
26
JURNAL OPINIO JURIS
help the Focal Point Initiative focus on timely information exchange
which will assist in the freezing/forfeiture of the proceeds of UNCAC’s
list of offenses. As appropriate, this can include the movement of
proceeds of crime through international financial systems, and will
include information extracted from Interpol Red and Blue Notices.
Among other types of information the Interpol/StAR Focal Point
platform will include samples of charging documents, freeze and
forfeiture orders, court decisions, StAR and other knowledge products,
upcoming training events and resource persons. Focal Point members will
be able to automatically post or request information and assistance.
The Camden Assets Recovery Inter-Agency Network25
The Camden Assets Recovery Inter-Agency Network (CARIN) is a
European Union network of practitioners and experts in the cross-border
identification, freezing, seizure, and confiscation of the proceeds of crime.
CARIN was established at The Hague on 22- 23 September 2004 by
Austria, Belgium, Germany, Ireland, Netherlands and the United
Kingdom and consists of a global network of practitioners, judicial
authorities and experts, with several observer status granted to several
others, with the intention of enhancing mutual knowledge on methods
and techniques in the area of asset recovery.
This organization began in October 2002 with a conference of the
Criminal Assets Bureau of Ireland and Europol held at the Camden Court
Hotel in Dublin, Ireland. CARIN has become an effective law
enforcement tool used among member countries for the expedient sharing
of information and use of multiple tools available for each jurisdiction to
trace, freeze or seize, and confiscate the assets of international criminal
organizations. One of the success stories is the cooperation and
coordination between CARIN and the Attorney General Office of the
Republic of Indonesia in asset tracing.26
25
For detail information on this section, please refer to the following site
http://www.assetrecovery.org/kc/node/baf520a5-fe6d-11dd-a6caf1120cbf9dd3.0;jsessionid=BE2F10787754FE5067C7A8C67DB5C692.
26
See http://www.kejaksaan.go.id/siaranpers.php?idu=27&id=557; and
http://www.hukumonline.com/printedoc/lt4efdc0ae6df74
27
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Such informal assistance can be exceedingly helpful to the process of
asset recovery, particularly in the initial identification of other names
used by the criminal targets, associates, and properties in the names of
these individuals. Informal contacts can often be the starting point for
later formal requests and in most cases are more preferred by law
enforcement agencies due to its less-bureaucratic character and pace of
information flow. Informal assistance creates a dialogue which can
produce valuable information, but formal MLA will likely be needed to
obtain documents and witness statements to be used in court as evidence.
Following the informal assistance, if permitted, a draft of the formal MLA
request can be sent to the other country to ensure that the prerequisites
are met. This practice can hopefully avoid time-consuming delays
resulting from rejections of the request for failure to comply with treaty
requirements.
1.2. Mutual Legal Assistance
Formal request of assistance from government to other government
in criminal matters is made through one of the following mechanisms:
international agreement providing for mutual legal assistance, bilateral
mutual legal assistance treaty (MLAT), domestic legislation permitting
international cooperation, or a promise of reciprocity through diplomatic
channel knows as letter rogatory.27 Amongst these four, it is agreed that
mutual legal assistance mechanism under international agreement and
MLA are more expeditious.
Mutual Legal Assistance (MLA) is an indispensable part of
international legal cooperation which can be requested at any stage of
investigation, prosecution and court proceeding. It differs from the other
formal instrument for its flexibility and less-time consuming procedure.
Assistances requested through MLA mechanism are of those having
certain level of urgency and made to reduce legal pitfalls and obstacles.
Three notable legally-binding international instruments which embody
measures on mutual legal assistance in asset recovery are UNCAC,
United Nations Convention against Transorganized Crime (UNTOC),28
27
28
Supra note xxv.
Please see http://www.unodc.org/unodc/en/treaties/CTOC/.
28
JURNAL OPINIO JURIS
and the Organization for Economic Co-operation and Development
(OECD) Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions.29
Article 46 of UNCAC elucidates that State Party shall afford the
widest measures of mutual legal assistance in the stage of investigation
which shall be afforded to the fullest extent possible under the prevailing
laws and regulations of the requested State. Despite of the presence of
similar provisions as elucidated under Article 18 of UNTOC, UNTOC
goes further by obliging the state party to the Convention to reciprocally
extend to one another the widest measure of mutual legal assistance in
investigations, prosecutions and judicial proceedings in relation to the
offences covered by the Convention.30
The type of assistance made available under both Conventions
including, but not limited to, assistance to compel and collect the
production of evidence and other relevant documents; service of judicial
documents; to issue search warrant, to execute seizures and freezing of
assets; examination of objects and sites; to obtain expert evaluations; and
the power to summon witnesses. The type of assistance may also include
of those that are not contrary to the municipal law of the requested state.
Nonetheless, practice of state has shown that MLA request can be
submitted despite of the unavailability of pre-existing bilateral or
international agreement between the requesting and the requested state,
and by taking into account the principle of reciprocity. The case involving
Sani Abacha of Nigeria and Alberto Fujimori of Peru are two pre-UNCAC
landmark cases on this field.
In the event a country would just about to submit MLA request for
the first time, references can be made to several international instruments
such as the “Model Treaty on Mutual Assistance in Criminal Matters” of
the United Nations,31 and the European Convention on Mutual Assistance
29
Please refer to
http://www.oecd.org/document/20/0,3343,en_2649_34859_2017813_1_1_1_1,00.html
30
See http://www.oecd.org/dataoecd/28/47/37900503.pdf
31
Model Treaty on Mutual Assistance in Criminal Matters. Adopted by General
Assembly resolution 45/117,
29
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in Criminal Matters on Laundering, Search, Seizure and Confiscation of
the Proceeds from Crime.32 Furthermore, UNODC has developed the
Mutual Legal Assistance Request Writer Tool (MLA Tool) to assist States
to draft MLA request.33 The tool will guide casework practitioners
through the preparation of Letters of Requests with a series of templates.
Caseworkers fill in the various data fields and make selections from dropdown menus in each template in order to prepare requests. The program
will not allow users to move from one section to the next until all of the
information is fully and correctly entered. This will ensure that requests
will not be rejected due to errors or omissions. When completed, the
program will automatically generate a correct, complete and effective
request. The program will also give access to relevant multilateral,
bilateral, regional treaties and agreements and national laws, and include
a case management tracking system for incoming and outgoing requests.
Nonetheless, the existence of any guidance should not reduce
requesting country to remain sensitive on the distinct character of laws
and regulations of the requested state. UNCAC merely serves as the lex
generalis and hence the detail regulations vary due to legal requirements
set down in each domestic legal system. Failure to identify a responsible
central authority to facilitate the implementation of MLA would likely to
seriously impede the effectiveness of the process. As state practice shown
when France refused to assist Nigeria since the request was made in
English, minor language requirement, as an example of detail regulation,
also forms as part of critical aspect which may expedite or otherwise
hamper MLA request.
Finally, it is good to see the positive trend from state practice which
shows countries are not more reluctant any longer to provide assistance
subsequently amended by General Assembly resolution 53/112. Full text of the
Resolution is accessible at
http://www.unodc.org/pdf/model_treaty_mutual_assistance_criminal_matters.pdf.
32
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from
Crime, Strasbourg, 8.XI.1990. Full text of the Convention is accessible at
http://www.assetrecovery.org/kc/resources/org.apache.wicket.Application/repo?nid=01a5
f3d6-9e9d-11dd-84a1-718cd479e9ee
33
For detail of this tool, please click the following link
http://www.unodc.org/mla/index.html
30
JURNAL OPINIO JURIS
in asset recovery in different type of legal basis. For instance, some
countries like France, Liechtenstein and United States may establish MLA
request directly based on international agreement. On the other hand,
countries like Canada, Cayman Island, and Switzerland provide similar
MLA request based on their own prevailing domestic laws and
regulations which mostly refer to international convention.34
1.3. Capacity Building
Corrupt practice has been a long-standing issue. Along with that,
the disperse effort to curb corrupt practice has been equally in the same
status as its cause. However, systemized and advanced method to cope
with this issue is still a new matter to law enforcement in developing
countries, let alone, measures to recover the stolen asset. While the skilled
lawyers, accountants and financial service experts employ sophisticated
method to hide the proceeds of corruption, the law enforcement agencies
in most developing jurisdictions are far left behind in terms of knowledge
and technical support.
It is therefore understandable that, even in recent practice, at least
for the purpose of tracing the asset abroad, private law firm or private
investigation team often prove helpful as shown in Ferdinand Marcos
case and Sani Abacha case. Some victim countries have invested
considerable sums without any other result and many others have been
reluctant to engage in asset recovery enterprises at high costs with
uncertain results. It can be understood since such firm generally charge
from US$200 to US$600 per hour.35 It is therefore can be estimated of how
the victim countries which mostly are developing, and not to mention
some underdeveloped nations, find even the attempt to recover the looted
asset already becomes a lengthy wall of barrier at their first stage of
tracing the asset.
Stolen assets are often legally managed by major global players in
private and offshore banking centers around the world. A recent report
by Global Witness found that despite of the numerous laws that are
meant to require banks to perform due diligence on their customers,
34
35
Supra note xx.
Please see http://intl-ijtj.oxfordjournals.org/content/2/3/310.accessible-long
31
JURNAL OPINIO JURIS
especially in the case of politically exposed persons, some of the best
known banks in the world have acted as repositories for stolen assets.36
Individuals hiding stolen assets use the same secretive legal instruments
and loopholes employed by multinational corporations for tax-dodging
and money launderers to make their funds sound lawful.37
Attempts to improve capacity of law enforcement officers have been
carried out at various global and regional levels. The first and foremost
worth noting is StAR initiative. StAR helps countries put in place the legal
tools and institutions required to recover the proceeds of corruption. This
includes assistance in legislative reforms, team building, hands-on
training and advice on asset-tracing and international legal cooperation.
StAR has provided training to over 500 officials in forty countries and
helped countries to apply these tools and skills by facilitating contacts
between jurisdictions in support of asset recovery cases.38 For instance,
StAR has cooperated with the International Center for Asset Recovery
(ICAR) and Thai National Anti-Corruption Commission (NACC) to
conduct an eight-day country specific training program on asset tracing
and asset recovery.39 StAR, however, does not investigate cases although
it has served as an intermediary to help return assets.
UNODC’s work on this field is also critical. UNODC has provided
technical assistance and capacity building to the Government of Islamic
Republic of Iran to set up a financial intelligence unit that will analyze
suspicious financial transaction which will also contribute to asset
36
See Kari Heggstad and Odd-Helge Fjeldstad, How Banks Assist Capital Flight from
Africa: A Literature Review, CMI Report of NORAD Project, 2010 at
http://www.cmi.no/publications/file/3750-how-banks-assist-capital-flight-from-africa.pdf.
37
Supra note xxxv.
38
See http://www1.worldbank.org/finance/star_site/documents/StAR_Update.pdf;
Towards a Global Architecture For Asset Recovery, UNCAC Conference Edition.
Accessible at
http://www.unodc.org/documents/corruption/Publications/StAR/StAR_Publication__Global_Architecture.pdf
39
See http://www.baselgovernance.org/big/news-singleview/archive/2010/july/article/stolen-asset-recovery-initiative-start-initiative-trainingprogramme-thailand/?tx_ttnews[backPid]=323&cHash=f77a7d7f15; and
http://www.baselgovernance.org/fileadmin/docs/publications/annual_reports/Annual_Rep
ort_2010.pdf.
32
JURNAL OPINIO JURIS
recovery process.40 UNODC Indonesia, on the other hand, is of the
opinion that recovering stolen assets is only one part of a bigger puzzle in
the struggle against corruption. UNODC Indonesia has conducted in the
past and still has ongoing projects focused on strengthening law
enforcement agencies in Indonesia encompassing the following efforts.
First, UNODC Indonesia has conducted several trainings for law
enforcement agencies that directly relate to asset recovery such as training
sessions on asset tracing, asset recovery, advanced corruption,
investigative interview, computer forensic and financial investigation.
Second, in collaboration with Jakarta Center for Law Enforcement
Agencies (JCLEC) located in Semarang, UNODC has trained law
enforcement agencies on various subjects, inter alia, investigation, fraud
prevention and money laundering. Lastly, UNODC Indonesia has made a
MoU in cooperation with the Basel Institute of Governance (Basel
Institute), which provides expertise on asset recovery matters from an
international perspective. UNODC and the Basel Institute have conducted
3 (three) trainings to Indonesian law enforcement agencies in this field.
The World Bank and a number of financial center countries also
provide ad hoc training to developing countries upon request. The
Millennium Challenge Corporation in Washington, D.C. offers grants to
qualifying countries to fight corruption which can include money for
training of investigators, prosecutors and judges in asset recovery
techniques.41 Moreover, the European Union has established Asset
Recovery Offices in 20 EU countries to allow better information flows and
aims to have effective asset recovery offices across the Union by 2014.
From the non-governmental side, ICAR, located in Switzerland and
launched by the Basel Institute for Governance in 2008, is assisting
developing countries to build capacity through training and information
sharing to trace, confiscate and repatriate the proceeds of corruption.
40
For further detail, please see
http://www.unodc.org/unodc/en/frontpage/2010/February/unodc-assists-iran-to-establishanti-money-laundering-unit.html; http://www.unodc.org/islamicrepublicofiran/en/historyand-achievement-sec3.html; and http://www.unodc.org/islamicrepublicofiran/en/the-firstregional-computer-based-training-on.html.
41
See http://www.africafocus.org/docs11/ar1102.php
33
JURNAL OPINIO JURIS
Lastly, it is worth noting that some governments have also launched
proactive efforts to facilitate the recovery of stolen assets through
technical assistance. For example, the UK, Liechtenstein and Switzerland
fund training programs for Southern law enforcement agencies on
formulating formal requests to recover stolen assets.42
1.4. Research and Knowledge Sharing
UNCAC implementations in the State Party are not uniform since it
depends on legal instrument available under municipal law of the
respective state, and on top of it is political will from the government to
implement UNCAC and adjust its law to be in compliance with UNCAC.
At this stage, UNCAC may serve as a tool to reform culture of corrupt
practice either rooted from weak law enforcement or from other aspects,
as well as to ensure that laws are in place to enforce anti-corruption
provisions. All too often corrupt officials succeed in keeping their stolen
funds because the laws of the victim country are woefully inadequate.
The most basic knowledge of asset recovery therefore shall begin its first
step in identifying the gap between the written articles and its field
implementation.
Article 63 of the United Nations Convention against Corruption
(UNCAC) establishes a Conference of the States Parties with a mandate
to, inter alia, promote and review the implementation of the Convention.
States Parties agreed that it is necessary to establish an appropriate and
effective mechanism to assist in the review of the implementation of the
Convention. As a respond to this inquiry, UNODC developed the "Pilot
Review Programme" to offer opportunities to test methods for
implementation review of the Convention, with the overall objective to
evaluate efficiency, information on lessons learned and experiences
acquired and effectiveness of the tested mechanisms. The review
mechanism is expected to enable decision maker to make informed
decisions on the establishment of the appropriate mechanism for
reviewing the implementation of the Convention. It is strictly voluntary
42
Supra note viii.
34
JURNAL OPINIO JURIS
and limited in scope and time. Sixteen countries formed the initial pilot
review group and have expanded to 29 countries.43
In addition, asset recovery is a new field in legal practice and
international law. Reference on publication and expert who produce the
reference is therefore also less in number compared to other field, i.e.
corruption. Research institution such as Basel Institute in Governance
plays an important role to conduct research and analysis towards main
source of international law related with asset recovery for development of
law related with asset recovery and its related field. Some of the notable
publications are Tracing Stolen Assets: a Practitioner’s Handbook; Non-State
Actors in Asset Recovery; and Capacity Building in Asset Recovery.
Another breakthrough on knowledge sharing mechanism by ICAR
since its inception is that the ICAR has been taking steps to address the
problem of the lack of easily accessible, comprehensive and practical
information on asset recovery. This has been identified as one of the key
problems by a number of countries and international organizations. The
ICAR launched the first version of the Asset Recovery Knowledge Centre
during the UN Convention against Corruption (UNCAC) Conference of
States Parties (CoSP) in Bali, Indonesia in January 2008. The Center is
dedicated exclusively to asset recovery work and is highly practitioneroriented by taking into account best practices and methodologies,
legislation and treaties, mechanisms for international mutual legal and
administrative assistance to facilitate asset recovery. Profiles for over 20
countries have been published that show the legal frameworks and
treaties and important official contact information. Furthermore, ICAR
also develop e-learning module on interactive corruption scenario. The
case involves stolen assets that have to be traced and frozen. The case is
purely fictional but certain elements of it are based on a real case to
enhance the practical value of this exercise.
StAR, on the other hand, has worked with practitioners to
consolidate and disseminate international good practice on cutting edge
issues such as non-conviction based forfeiture, managing asset returns,
43
For further information, please see http://www.unodc.org/unodc/en/treaties/CAC/pilotreview.html and http://www.unodc.org/unodc/en/treaties/CAC/IRG.html.
35
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income and asset declarations and illicit enrichment. StAR publications
are being used to inform the design of forfeiture legislation in countries as
far afield as Indonesia, Russia and Guatemala. To this extent, StAR has
produced various research publications. Amongst the latest and worth
noting are publications entitled: Barriers to Asset Recovery: an Analysis of the
Key Barriers and Recommendations for Action; Asset Recovery Handbook: A
Guide For Practitioner; Asset Recovery, Politically Exposed Persons: A Policy
Paper on Strengthening Preventive Measures; and Stolen Asset Recovery
(StAR) Initiative: Challenges, Opportunities and Action Plan.
1.5. Information Technology
As a result of information technology's development, financial
activities change to the virtual space from the real world with a new
confidentiality and highly effective method to conceal the looted asset. It
is a common understanding that fighting corruption cannot be won by
merely a collection of knowledge and network, but to gear the law
enforcement with information technology system of which is also a part
of international instrument role in asset recovery.
The Information Technology Service (ITS) of the United Nations
Office on Drugs and Crime (UNODC) specializes in the development,
deployment and support of software applications for use by Member
States in a range of UNODC's program areas. The products are part of
UNODC's strategic response to crime, particularly serious and organized
crime. User countries include Finland, Denmark, Morocco, Tanzania,
South Africa, Nigeria, and the Netherland. Just last year, the Corruption
Eradication Commission of the Republic of Indonesia is listed as one of
the users of this IT system.
The product includes integrated investigative case management
and intelligence analysis tools for Financial Intelligence Units (FIUs), law
enforcement, investigative, intelligence, regulatory, prosecution and asset
recovery agencies, and for courts and other government agencies
involved in the criminal justice process. All the software products include
multi-faceted integration, and can function as "stand alone" applications
or together to form one global system, depending on the needs of the
requesting Member State. The application of systems able to interface
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with each other encourages inter-agency and cross border cooperation
and information sharing at the national, regional and international levels.
One of the most relevant IT products for asset recovery purpose is
the goAML application. It is an integrated database, intelligence analysis,
workflow and resource management system intended for use by Financial
Intelligence Units (FIUs) worldwide. goAML provides a "one stop" FIUspecific solution, and is executed in three steps: data collection, analysis
(rule-based analysis, risk-score and profiling) and dissemination (escalate
to law enforcement and seek feedback). It provides a facility for the rapid
and easy online exchange of information between the FIUs, reporting
entities, law enforcement and judicial authorities, while ensuring data
confidentiality. The goAML system is driven by a security model that
specifies the kind of access rights each user has, and which provides an
audit trail and log details for every transaction performed by all users.
The goAML solution is well suited to both low and high data volume
environments.
1.6. Advocacy
The work of international organizations is critical in work of
advocacy which includes advocacy work at any stage of asset recovery
process. Several of them are as follows. First, in a case involving JeanClaude Duvalier, President of Haiti, StAR Initiative assisted the
Government of Haiti to return the US$6.5 million public funds stashed in
a bank in Switzerland. This is the first of its kind that international
community in the form of the World Bank and UNODC worked together
in asset recovery.
In another example between APDHE v. Equatorial Guinea, the
African Commission on Human and Peoples' Rights filed a complaint
before a regional human rights court on the allegation toward the
Government of Equatorial Guinea which plundered the national oil
revenues and therefore constitutes as a violation of the African Charter. In
the same continent, in APDHE v. Obiang Family, a Canary Islands court
admitted a criminal complaint against Equatorial Guinean President
Obiang and his family members, alleging the crime of money laundering
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for illegally diverting large sums of public funds to purchase private real
estate in Spain.
In a broader forum, StAR has cooperated with the United Nations
Convention against Corruption Asset Recovery Working Group, the
Financial Action Task Force, and the OECD Working Group on Bribery to
promote asset recovery to the top international policy agenda in the G20.
The tangible impact produced by the G20 has been significant the last
couple of years. The G20 includes specific measures to facilitate asset
recovery in its anti-corruption action plan; the Financial Action Task
Force is currently reviewing its anti-money laundering standards to
strengthen measures against the proceeds of corruption; and the OECD
Working Group on Bribery recently started work on the proceeds of
bribery. StAR is working with the OECD to monitor OECD countries’
progress against their commitment in the Accra Agenda for Action to
“take steps in their own countries to track, freeze, and recover illegally
acquired assets”. Another significant result of such advocacy are
responses from the G8 who has planned “accelerated response teams” of
forfeiture-related mutual legal assistance experts to be committed at the
request of victim states whose assets have been secreted abroad, as well
as case coordination task forces for specific cases.44
2. POST ASSET RECOVERY PROCESS
2.1. External Oversight on the Utilization of Proceeds of Asset
Recovery
Civil society and international non-governmental organizations
have an important role to play in asset recovery. Efforts of bodies such as
the International Centre for Asset Recovery (ICAR) should be supported
and expanded. In the Mobutu case for instance, a Swiss court decision to
accord Mobutu’s US$ 6.5 million assets to his heirs was singularly
challenged by Mark Pieth, founder of the Basel Institute of Governance.
Transparency International and Sherpa have also been leading on
asset recovery. In May 2009, The French Court held that Transparency
44
For further detail on this section, please see
http://www1.worldbank.org/finance/star_site/documents/StAR_Update.pdf
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International and Sherpa could bring a case in France against three
African leaders. However, it is regrettable that the French Court of
Appeal ruled that Transparency International (France) does not have legal
standing. Yet, the type of cooperation and work between TI and Sherpa is
the one that has to be promoted, especially for those in developing
countries to strong force to counter state larceny by leaders.
Furthermore, in Sani Abacha case, the World Bank acted as a neutral
party to review the utilization of the US$505.5 million. Through the
World Bank, the Swiss government provided a grant of about US$280,000
to co-finance the Public Expenditure Management and Financial
Accountability Review (PEMFAR). PEMFAR was initiated as a means of
executing reforms in budget spending, with regard to the Nigeria’s
National Economic Empowerment Development Strategy (NEEDS)
priorities in education, health, and basic infrastructure. The World Bank
also mobilized a Nigerian civil society to prepare and administer the field
monitoring survey of 51 project sites. The participation of the civil society
organizations came as an afterthought following pressure from both
Swiss NGO coalition and civil society organizations under the umbrella of
Nigerian Network on Stolen Assets (NNSA), an organization of groups
working on anti-corruption, social and economic rights, public policy,
health, and environment.
III. WHAT MAY WE LEARN?
1. Missing link on role of judiciary
Attempt to recover the looted asset located in overseas has been so
much focusing on role of the law enforcement agencies, in particular
police institution and office of prosecutor. Yet, less attention is paid to a
more fundamental role of judiciary which serves as decisive critical point.
The determination whether a person is guilty for corrupt practice is
determined by court decision which has final and binding status. Once
the element of crime is established, it would be the work of prosecutor
office to execute the court decision. In common criminal perspective, the
execution involves imprisonment and confiscation upon certain evidence.
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While the verdict of most criminal offence is to sentence the guilt party
under certain length of imprisonment, the verdict on corruption case
must go beyond this by paying a lot more focus on later attempt to
recover the looted asset.
Best practice from court decision in Abacha, Marcos and Duvalier
cases show that the distinct character of court decision relies on the
quality of the following, inter alia: the ability to formulate that there is an
established link between the asset and the predicate crime and quality to
articulate the exact asset, its quantity (depends on qualification of asset),
location and other detail, which will be subject to confiscation. Failure to
fulfill to this requirement entails the inability of prosecutor to enforce the
law. It is not surprising then to witness that most corruption cases find
their obstacle on the inability to execute the asset as form of asset
recovery.
It is therefore imperative to bring the new perspective of asset
recovery to judges who deal with corruption cases that, especially for
those involved in grand corruption trial, that aside from putting a test on
the fulfillment of the element of crime presented by prosecutor before a
court, the decision must also take into account the attempt to recover the
asset.
2. Who is who?
In its recent publication, StAR initiative points out one of the general
barriers in asset recovery as “Too Many Cooks in the Kitchen-Lack of
Coordination”. This barrier does not only occur at the stage of preparing
MLA, but is also present at any stage in asset recovery. With regards to
this situation, the author is of the opinion that it occurs due to, either, the
absence of coordination mechanism or the inability to identify the party
involved in the process. The absence of coordination mechanism mostly
appears due to absence of concise rule to regulate as such and competing
or overlapping authority between institutions. Practitioners suggest that a
creation of joint task force and working group on asset recovery be it at
domestic or international level may solve the problem hence matters
related with legal and technical issue can be mutually regulated amongst
them.
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Furthermore, it is worth noting that asset recovery is a sensitive
matter since it deals with politically-exposed person and assets valued for
billions to trillions dollar, this is not to mention the classified information
involved and flow of enormous funding from a government in attempt to
recover the assets. For that purpose, the effort must be conducted strictly
based on the prevailing laws and regulations and the most important
thing would be to take into account the interest of a nation. At the first
stage, a government is required to designate and clarify the specific law
enforcement agencies and other government body (if any) specifically
designated to involve in asset recovery matter. This is meant to avoid any
intrusion from parties who claim or act as if they were representative of a
government or law enforcement agencies which will hinder or create
distrust amongst these agencies in performing their duty. This is to
include that communication from a government to foreign counterpart
must be solely performed by the authorized agency.
3. Small, yet, well-trained team
Capacity building for law enforcement agencies involved in asset
recovery must be carried out in such an extensive and sustainable
manner. It shall cover all rank officers from decision maker to field officer.
However, the most important thing would be to ensure that such officer
will be put into a real test of asset recovery process in their respective
institution once they have accomplished the training. Furthermore, it is a
common practice that law enforcement agencies also suffer from rotation
and posting system. Therefore, there should be an assurance as well for
them on the performance sustainability in their respective unit.
Furthermore, there is also a need to bring different perspective of
knowledge on matters related with asset recovery to the officer. For
instance, aside from common training on money laundering provided
from law enforcement perspective, the training should also be provided
by corporate lawyer and banker, whom as gatekeeper, may give different
perspective on scheme and mechanism of money laundering from the
other side of coin. Furthermore, aside from knowledge on laws and
regulations per se, law enforcement agencies shall be provided with, at
least, general knowledge on corporate and international business
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transaction covering subject matters such as corporate law, capital market
and derivative, investment and tax. It is therefore expected once they
have better understanding on other aspect in asset recovery, they are not
only a law enforcement officer but a law enforcement officer who can
think like the gatekeeper.
Unfortunately, there has been no reference on such practice
internationally. However, in domestic level, the following practice may be
taken into account. Paku Utama (former UNODC Consultant), Feitty
Eucharisti (in-house legal counsel), and the author begin a small initiative
to have a knowledge-sharing class on matters related with asset recovery
field by inviting experts and daily practitioners in field related with asset
recovery. The class is intended to asset tracing team at one of the law
enforcement agencies in Indonesia and recently officers from different
units in the institution has also been involved. The class finds its objective
to bring new perspective on asset recovery from the perspective of nonlaw enforcement officers such as lawyer, banker and corporate legal
counsel. The subjects presented before the class therefore are tailored to
cover a more daily-practical knowledge known to the presenter.
Therefore, if most law enforcement agencies are made known money
laundering based on law enforcement perspective, the presenter would
bring different angle on how money laundering is actually performed.
On the other hand, aside from substantive issue, the structure of
asset recovery team must be adjusted based on the need. For instance,
compared to the 2 (two) main investigation units (Indonesian National
Police and the Attorney General), Corruption Eradication Commission
(KPK) has a special unit to deal with assets of convicted person in
investigation phase. The unit in INP and AG must perform two functions
simultaneously when being faced with a case, namely: case management
function and asset management function. While in KPK, the functions are
performed by two separate units. Case management is handled by
Investigation Unit which copes with the finding of evidence to determine
the suspect and to structure the case to be later submitted to Prosecution
Unit, and Special Tracing Unit which has responsibility in tracing and
securing, administrative and asset management.
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This special asset-tracing unit does not refer to specific model and
yet established based on the operating needs of KPK to create a more
efficient and effective measures. Nonetheless, there were references made
in the creation of this unit such as ICAC Hong Kong, US Marshall, New
South Wales Attorney General of Australia and several other institutions.
IV. CONCLUSION
The author finds that it is best to begin the following conclusion by
addressing reader with one quotation from Moises Naim that the first
steps to reverse their (threats’) recent dramatic gains must be to treat the
conflicts not as law enforcement problems but as a new global trend that
shapes the world as much as confrontations between nation-states did in
the past. Customs officials, police officers, lawyers, and judges alone will
never win these wars.45 The role of international instrument on asset
recovery has been in place to respond to the weaknesses suffered by law
enforcement agencies, especially in developing countries. It covers wideranging fields from international cooperation to information technology.
The work on asset recovery which was previously scattered and localized
in certain region has shown positive trend to gain support from many
countries. However, the presence of international instrument would not
necessarily ease country in expediting the process of asset recovery. It
remains on the political will of country to join the global fight against
corruption in which asset recovery forms as one of its fundamental
principles and the willingness to utilize the already available international
instrument on their advantage to recover the asset.
Therefore, on the question whether the glass is half-full or halfempty on the role of international instrument on asset recovery, we may
answer it as half-full to describe the wide-ranging coverage of its role; yet,
we may answer it as half-empty with the expectation that there is still a
lot more that international instrument can contribute in the near future.***
45
Moises Naim, The Five Wars of Globalization, Foreign Pol'y, Jan./Feb. 2003 Issue 134,
at 28.
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RECOVERING INDONESIA’S ASSETS: PAST,
PRESENT AND FUTURE
Abstrak
Tulisan ini menjelaskan mengenai pengalaman Indonesia dalam proses
pengembalian aset curian dan hal-hal yang dapat dilakukan di masa depan untuk
mencapai pengembalianaset yang efektif. Dalam beberapa kasus, Indonesia sukses
dalam pengembalian aset curian seperti dalam kasus Kartika Thahir. Namun
kegagalan juga dialami, seperti pada kasus-kasus perbankan. Dengan demikan,
Indonesia perlu meningkatkan upaya pengembalian aset curian, di antaranya
dengan pembuktian kuat bahwa aset yang ingin dikembalikan adalah aset curian,
permintaan bantuan secara informal dan formal, kepemimpinan yang kuat,
sumber daya manusia, dan pembagian tugas dan fungsi yang jelas antara
instansi terkait.
Kata kunci: Kartika Thahir case, prove, persistent effort, international cooperation
Asset Recovery: an Arduous and Tenuous Process
Many developing countries have already sought to recover stolen
assets and proceeds of crime, including Indonesia. With US $20-40 billion
stolen every year through bribery, only US $5 billion is recovered to date,
after years of high profile, politically sensitive legal battle46. Yet it is
important for any government to declare that crime does not pay – that
ill-gotten assets have to be contested and repatriated. Indonesia’s
experience in asset recovery is a mix of success and perils, with much to
be learned.
46
Jean Pierre Brun et al, “Asset Recovery Handbook, A Guide for Practitioners”, StAR
Initiative, Washington DC, 2011.
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Learning from the Past: can history repeat itself?
In 1994, Pertamina47 managed to recover USD $76 million48 from
the contested 17 deposits in Singapore from the Kartika Thahir, the wife
of General Achmad Thahir, after 17 year-long civil proceedings and
appeal in Singapore. Pertamina managed to prove, based on the first
instance court ruling that all bribes and earned interest deposited in the
accounts are derived from a breach of fiduciary duty. The success came
after years of court battle, millions of dollars paid to foreign lawyers, and
the determination to provide a firm link between the funds received and
source of bribes as well as, Gen Thahir’s role in Pertamina – which
involves intensive and carefully considered evidence gathering and
presentation with strong support from the government.
For any international asset recovery efforts to be successful, clear
nexus has to be established between contested assets and the offense: that
assets are benefits derived from the offense. The Singapore court ruling in
the Kartika Thahir case describes that the deposits are commissions from
foreign contractors awarded through fraudulent manner involving Gen.
Thahir.
More importantly, strong leadership to manage a team of different
background and expertise is key – aside from undivided focus and
persistence. Indonesia’s fight to recoup Pertamina’s assets is led by
General LB “Benny” Moerdani – a fearless, action oriented leader and
strategists from the Indonesian military – his leadership unwavering in 17
years, and remained strong through 3 prominent positions: General
Moerdani was the Chief of Indonesian Strategic Intelligence Agency
(BAIS) when the case was first heard in court (1977), the Chief of
Indonesian Military in 1983-1988, and the Minister for Defense in 198847
PT Pertambangan Minyak dan Gas Bumi Negara, a state owned enterprise whose
principal business is in exploration, processing and marketing of oil and natural gas.
48
Kartika Ratna Thahir v PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina)
[1994] 3 SLR 257 (CA), also was reported in Reuters, December 4, 1992. Singapore High
Court judge Lai Kew Chai, in a 214-page ruling, said Pertamina had proved its claims
that some $76 million frozen in offshore accounts at Sumitomo Bank were ill-gotten
gains and ordered Sumitomo to pay the oil company the funds. The case, first heard in
1977, pitted Pertamina against the widow and estate of Achmad Thahir, long-time
assistant to Pertamina's president director Lieutenant General Ibnu Sutowo.
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199449. The General was not alone – he had access to the best human
resources in his team and funding for the team to operate.
It is conceivable that the Pertamina’s success has not been repeated.
A similar opportunity presented itself in 2007 when the Royal Court of
Guernsey ordered an injunction and offered the Government of Indonesia
to be a third party. Although the legal battle is still ongoing, the
Indonesian government is criticized for not doing enough to prove its
claim that the 36 million Euros are proceeds of corrupt practices. Other
high profile international recovery cases are the Bank Indonesia liquidity
funds (BLBI) – misused during the 1998 financial crises, and scams in the
state owned BNI and Mandiri. In all of the banking related cases,
Indonesia only managed to recover USD $3 million from a total of USD
$280 million allegedly stolen50.
The Pertamina success came long before instruments are available
for Indonesian authorities and to facilitate international cooperation. It
precedes the signing of bilateral and multilateral treaties on mutual legal
assistance, the declaration of United Nations Conventions against
Transnational Organized Crime (UNTOC) and against Corruption
(UNCAC), and the promulgation of domestic laws such as laws on
Mutual Legal Assistance and Extradition, Laws on Money Laundering
and others. Capacity and experience in drafting requests is also enhanced
over the years – if Indonesia is better equipped – why history of success in
recovering asset has not repeat itself?
Learning from the past, critical success factors for asset recovery are:
ability to show nexus between contested assets and the offense, strong
leadership of the team and persistent efforts.
The present: systematic asset recovery efforts- have they delivered?
Recovering ill-gotten assets or proceeds of crime in other
jurisdictions require international cooperation. Most information sharing
is taking place through informal, less bureaucratic manner between law
enforcement authorities or financial intelligence units, but when coercive
measures are required to order production of documents, to prevent
49
50
www.tokohindonesia.com
www.assetrecovery.org
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dissipation of assets, and to recover assets – assistance is sought from
corresponding jurisdictions. When requesting assistance a formal request
is presented, to allow the requested state to act based on the request.
Law Number 1/2006 on Mutual Legal Assistance states that the
Central Authority is the Ministry of Law and Human Rights, and that
request for assistance shall be conveyed by the Minister (directly or
through diplomatic channels) based on an inquiry from the Chief of
Indonesian National Police (Kapolri) or the Attorney General51, or in the
case of corruption, from the Chair of the Corruption Eradication
Commission (KPK). Within each of the institutions stated in the law,
procedures to initiate request vary, some are better defined than others.
In fact, the articles translate to layers of steps which have to be
undertaken prior to the drafting or even submission of request for
assistance. Overall KPK applies less bureaucracy, but the volume of cases
handled by the KPK is marginal compared to the Indonesian National
Police (INP) or the Attorney General’s Office (AGO).
During pre-investigation or investigation stage – when assets are
identified and located, and there is fear of dissipation, the investigating
officers may initiate request. The letter from the Chief of INP to the
Central Authority is drafted upon review and approval of the supervisors
– the head of unit, director, and the Deputy Head of Criminal
Investigation Division. The internal review process constitutes strings of
paper work – before a formal letter is signed and presented to the Central
Authority.
Assets may also be identified at the investigation stage, but the need
to seize assets arises during prosecution stage. The prosecutor for the case
has to express the request either to the District Attorney or to the
Attorney General, after review by the Deputy Attorney General for
Special or General Crimes, with some support from the Legal Bureau.
The court may also order the confiscation and forfeiture of assets
through court orders, which have to be executed abroad. In this case the
Attorney General will present a letter to the Central Authority to request
foreign jurisdictions to execute Indonesian court orders.
51
Article 9 (2) and (3) of Law Number 1 Year 2006 on Mutual Legal Assistance in
Criminal Matters
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At any stage, the Directorate of International Law and Central
Authority is tasked with conducting technical assessments on legality,
format, legal basis to proceed, and communicating with the requested
state authority prior to sending a formal request from the Minister of Law
and Human Rights, on behalf of the Government of Indonesia. When
there are questions concerning the request, the Central Authority will
have to request the Chief of INP or the Attorney General or the Chair of
the KPK to respond, through a letter, and the process returns in full cycle.
For civil actions taken abroad, such as the case in Guernsey, the
process is less defined. In all cases that involve asset recovery in foreign
jurisdictions, teams are appointed and assigned to expedite processes and
overcome issues related to inter-agency coordination.
So have the fore mentioned processes been delivered? Have better
capacities (from experience and trainings) manifested in better, more
concerted efforts? Indonesia is not necessarily prolific in producing
requests, let alone been successful in ensuring that foreign authorities are
able to act upon the requests based on the standards of the requested
state. What are the impediments, which prevail to this date?
Instruments +Capacity - Clearly Defined Accountability = Recipe for
Ineffectiveness?
Asset recovery, for the many so called ‘practitioners’, has not been
treated as a matter of utmost importance and urgency. Yet they are not
the only one to blame. For those holding in different positions in any of
the multiple stages in the asset recovery process, ensuring that any
mutual legal assistance request submitted by Indonesia is executable –
can never be traced or located in their terms of reference, primary
responsibilities and functions (tugas pokok dan fungsi, tupoksi), key
performance indicators – which explains why specific appointments or
team creations are required for each case.
Institutionally, the Mutual Legal Assistance law spells out who are
the relevant agencies, but says nothing on how work is divided or shared
– one of the root causes of coordination related issues. And as legal battles
require years of tenuous, arduous work alongside the authorities of the
requested state, when persons change, the institutions are not equipped to
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manage hand over of information and responsibilities. But have we lost
all hope?
The Way Forward: A Comprehensive Diagnosis before Immediate Cure
It is impossible to ensure that a fearless action oriented leader such
as General Moerdani to lead every single effort to recover ill-gotten assets
abroad. But with clear division of roles and responsibilities, enhanced
accountability of everyone involved, dedicated resources able to convince
foreign jurisdictions on the claims of Indonesia’s stakes abroad - then we
may have a better chance of winning our battles.
There is an impetus for change, for reform – as public is now
demanding expediency – or at least greater accountability - in recovering
assets of high profile corruption and bank fraud cases. However, a
simplistic view of the problem may not suffice in addressing the human
resource management, institutional and legal framework issues. A
thorough diagnosis of the business process, institutional set up, capacity,
legal framework, and even resources is paramount prior to determining
how to move forward at full speed. And only with such, then the history
of success in recovering millions of dollars’ worth of ill-gotten assets will
not only repeat itself, but will also multifold.***
“ Laws and institutions, like clocks, must occasionally be
cleaned, wound up, and set to true time. ”
- Henry Ward Beecher -
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LAW AND PRACTICE OF ASSET RECOVERY IN
INDONESIA: CHALLENGES AND OPPORTUNITIES
Hikmahanto Juwana, M. Ajisatria Suleiman, and Harjo Winoto
Abstrak
Pelaku kejahatan kerah putih, seperti korupsi, sering menyimpan aset-aset curian
dan kekayaan mereka di luar negeri. Mereka melakukannya agar para penegak
hukum di negara dimana kejahatan tersebut dilakukan tidak memiliki akses
terhadap aset-aset serta kekayaan tersebut. Walaupun demikian, kejahatan kerah
putih akan menyadari bahwa usaha mereka tersebut gagal apabila terdapat kerja
sama yang erat antara negara di mana kejahatan tersebut dilakukan dan negara
di mana aset-aset tersebut disimpan. Dewasa ini, Perjanjian Bantuan Hukum
Timbal Balik telah dapat diterima sebagai suatu bentuk untuk mewujudkan kerja
sama internasional. Meskipun Bantuan Hukum Timbal Balik bukanlah satusatunya pilihan, tetapi dipertimbangkan sebagai metode hukum yang efektif dari
pengembalian aset.
Kata kunci: Aset, Perjanjian, Hukum
1. Introduction
Perpetrators of white-collar crimes, such as corruption, frequently
stash their stolen assets and wealth overseas. They do this so that law
enforcers at the country where the crime was committed have no access to
those assets and wealth. However, white-collar criminals will find their
efforts a failure if there is close cooperation between the country where
the crime was committed and the country where the assets were taken to.
Nowadays, Mutual Legal Assistance (MLA) treaty has gained popular
acceptance as a form to embody this international cooperation. Although
MLA is not the only option, it is considered the most effective legal
method of asset recovery.
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One of the most important objectives of an MLA treaty is to retrieve
the asset that is either belong to the perpetrator of the crime, or that is
considered as the proceed of the crime. Cooperation in criminal matter for
the purpose of asset recovery is of paramount importance, especially for
country such as Indonesia, in order to gain more benefit than
commencing cross border civil proceeding over the asset in the country
where the asset is traced. Even so, the existence of an MLA treaty does
simplify the procedure, but there are still practical challenges that
Indonesia needs to encounter when ensuring the return of asset to the
home country. This article deals with the challenges that the law officials
must cope with, as well as the recommendations as to the steps that they
can take. Therefore, this article discusses the problem of asset recovery
both at the legal and practical level, as well as the national and
international sphere.
2. Asset Recovery in International Treaties
First of all, one must note that MLA, which deals with international
cooperation in criminal matter, is not the only way to make effective of
asset recovery. A country that suffers losses from a crime can commence a
civil lawsuit in a country where the asset of the criminal perpetrator is
found without prior MLA arrangement. Another method also involves
the combination of civil lawsuit and criminal MLA treaty to ensure the
return of assets to the home country.52
However, if a country opts for an arrangement at the public
international law sphere, MLA becomes essential. As a cross border
initiative, asset recovery is subject to international norms governed under
international agreement. The international community has managed to
enter into various treaties. Meanwhile, country such as Indonesia has also
promulgated a law to govern treaty implementation at domestic level by
virtue of Law 1/2006 on mutual legal assistance (MLA). Cooperation in
52
For comparison, see “The Legal Framework”,
http://www1.worldbank.org/finance/star_site/documents/global_architecture/seccion_d.p
df (last access 25 May 2012).
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form of treaty may become optional if countries agree to operationalize
asset recovery initiative on the basis of reciprocity.
Provisions concerning asset recovery, or MLA in general, have been
mentioned in, for example, the 1988 UN Convention Against Illicit Traffic
Narcotics Drugs and Psychotropic Substances, Article 7; the 2000 UN
Convention on Transnational Organized Crime Article 7, 18, 27; and
Financial Action Task Force (FATF) 40 Recommendation point 36, 37 and
40 (including interpretative note to recommendation 40). At the bilateral
and regional level, Indonesia has entered into several MLA treaties,
which contain provisions on asset recovery, with Australia, South Korea,
and China, in addition to a regional MLA treaty within the ASEAN
sphere, all still not yet ratified. One MLA treaty that Indonesia has ratified
is with Hong Kong, by virtue of Law 3/2012.
However, the most comprehensive treaty regulating asset recovery
is that of the UN Convention against Corruption (UNCAC), ratified by
Indonesia under Law 7/2006. UNCAC governs asset recovery both
within the context of MLA in criminal matter, as well as cross border civil
litigation (non-MLA asset recovery). This explains why MLA and asset
recovery are two separate chapters in the UNCAC. The specific chapter
on asset recovery under UNCAC also comprehensively discusses about
the preventive measure (including anti-money laundering norms and the
issue of bank secrecy and financial market disclosure) and
repressive/enforcement of asset recovery through criminal cooperation or
civil lawsuit. The scope of international cooperation in criminal matter
also includes case still under ongoing investigation or the enforcement of
an already legally binding decision.53
3. Practical Challenges in Indonesia
The existence of a treaty or a set of domestic law is surely not
enough to ensure effective enforcement of a law, especially for asset
recovery that has cross-border nature. The followings are challenges
encountered in the context of Indonesia’s legal practice.
53
See UNCAC, Chapter V, Art. 51-59.
52
JURNAL OPINIO JURIS
1. Transforming Treaty into Domestic Law
Upon ratification of a treaty in Indonesia, there is still a requirement
to transform the treaty provision into national legislation. This is
important to operationalize and make effective of the provisions
contained in such treaty into enforceable legislation.54
2. Differences in Legal System
The differences in legal system and legal tradition (such as the
continental-based civil law and the Anglo-Saxon-based common law) and
differences in forfeiture system (value-based system as opposed to
property-based system) are indeed major obstacles to effective asset
recovery regime. There is also another issue of legal definition of certain
crime that may vary from one jurisdiction to another. What constitutes
“embezzlement” or “corruption” in one country may be considered
simply as “administrative error” in another country. At the enforcement
level, differences also arise with regard to procedural law, burden of
proof, and the timeframe to obtain assistance for recovering the assets in a
court proceeding.
For example, there is a difference between the continental legal
system (civil law) and the Anglo Saxon system (common law) with regard
to the authority to freeze, seize, and confiscate assets. The main issue is
whether the public attorney and/or the court bailiff is entitled to directly
seize or confiscate the asset, as opposed to requiring prior registration of
the court decision. If one jurisdiction already considers a certain legal
documentation is sufficient, while in another jurisdiction requires further
order to operationalize the confiscation, this may cause confusion in the
court proceeding and thus delay the enforcement of a court decision. At
worst, the country where the asset is located can deny a request for an
asset recovery.
54
See Hikmahanto Juwana, Hukum Internasional dalam Perspektif Indonesia sebagai
Negara Berkembang, (Jakarta: Yasrif Watampone, 2010), specifically in the chapter
“Kewajiban Negara Mentransformasikan Ketentuan Perjanjian Internasional Pasca
Keikutsertaan” (State Responsibilities to Transform Treaty Provisions upon
Participation).
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One concrete example is the asset recovery effort related to the Bank
Century criminal case. The District Court of Central Jakarta has found
Hesyam al Warraq, Rafat Ali Risvi, and Robert Tantular, former
shareholders of Bank Century, guilty in an in absentia judicial proceeding.
Hesyam and Rafat were convicted of 15 years imprisonment, monetary
fine of Rp. 15 billion, and monetary compensation penalty (uang
pengganti) of Rp. 3,1 trillion, and in addition their assets located overseas
were ordered to be confiscated.55
In Hong Kong, Indonesia is trying to confiscate their assets with
nominal value of around Rp. 1,2 trillion. The presence of an MLA treaty
between Hong Kong and Indonesia has surely made the initiative
simpler, despite the objection launched by the convicts. An issue yet still
arises whether the verdict issued by the District Court is already sufficient
to confiscate the asset, or whether the Indonesian authority (i.e. the
judiciary) needs to issue a further confiscation order.56 Meanwhile, asset
recovery in Switzerland encounters even more difficult problem. The
Government, along with Bank Mutiara (as the successor of Bank Century)
has initiated civil proceeding at the Cantonal Court of Zurich,
Switzerland, in the absence of MLA arrangement. Problem arises because
the criminal act of the convicts, upon which the claim is based, is
considered as merely banking mal-administration according to the Swiss
law. In addition, there is a counter claim over the asset with nominal
value of US$ 155,9 million placed in the LGT Bank (formerly Dresdner
Bank).57
55
“Kasasi Robert Tantular ditolak MA”, Merdeka.com, 27 Maret 2012,
http://www.merdeka.com/peristiwa/kasasi-robert-tantular-di-tolak-ma.html (last access
25 May 2012).
56
“Freezing of Century’s Assets in Hong Kong Face Problems, “
http://www.tempointeractive.com/hg/nasional/2010/01/12/brk,20100112218709,uk.html” (last access 25 May 2012).
57
“AGO is Trying to Recover Bank Century Assets from Hong Kong and Switzerland”,
hukumonline, 10 Februari 2011, http://en.hukumonline.com/pages/lt4d53be1264ac0/agois-trying-to-recover-bank-century-assets-from-hong-kong-and-switzerland (last access 25
May 2012).
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JURNAL OPINIO JURIS
3. Inter-agency Coordination at the Domestic Level
A classical issue within the Indonesian legal institution is weak
coordination among law enforcement officials and public institutions.
This may affect negatively initiative at the international level.
For example, the central authority for MLA according to Law
1/2006 is the Ministry of Law and Human Rights (MOLHR). MOLHR is
not a law enforcement agency within the Indonesian criminal justice
system having the authority to investigate or prosecute criminal matter.58
Therefore, in the administration of justice, the MOLHR must coordinate
with the institution in charge such as the Attorney General’s Office
(AGO), the National Police, or the Corruption Eradication Commission
(KPK). This is different with countries such as the United States (US),
whereby the AGO, the Department of Justice (DOJ), as well as the
investigation authority (Federal Bureau of Investigation, FBI) are all
under the same institution.
There is also an implicit rivalry between law enforcement officials.
This may create competing authority claim when there is a requirement to
coordinate with foreign authority where the asset is located. Agency
coordination among the MOLHR, AGO, KPK, and the National Police can
delay the cooperation at the international level.
Indonesia’s financial intelligence unit, represented by Pusat
Pelaporan dan Analisis Transaksi Keuangan (PPATK) is not well equipped
with sufficient authority. PPATK is merely entitled to set up reporting
and analysis system over financial transaction, but it has no authority to
grant consent over suspicious transaction. Therefore, PPATK cannot
prevent transaction from occurring, nor its result can be used as a basis
for confiscation overseas.
This authority problem can be counter-productive to what foreign
authority where the asset is located has achieved. For example, a
proceeding that has come under public attention is that of the proceeding
to retrieve a bank account in the value of 36 million Euro in Guernsey, a
UK protectorate, registered under the ownership of Garnet Investment
Limited, a company controlled by Tommy Soeharto.
58
For discussion, see OECD – Indonesia, in
http://www.oecd.org/dataoecd/30/52/39984819.pdf (last access 25 May 2012).
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JURNAL OPINIO JURIS
In this case, the initiative to commence the proceeding was from the
bank where the account is registered, namely BNP Paribas (now Credit
Suisse). The case started when BNP reported a suspicious transaction in
the amount of 36 million euro as the proceeds for the sale of shares of
Lamborghini SA in 2002. BNP, following up its due diligence obligation,
reported this transaction to Guernsey’s Financial Intelligence Service (FIS)
under the suspicion that Garnet’s source of fund was proceed of crime.
BNP’s due diligence was confirmed by the FIS, which was also
convinced that the beneficial owner and the controlling owner of Garnet
was in fact Tommy Soeharto. Garnet’s account in BNP was frozen subject
to Garnet’s explanation regarding the source of fund. The case went to the
court because Garnet refused to provide such explanation. The
Indonesian AGO became party to the case as an intervening claimant;
unfortunately its argument was not admitted by the court.59
4. The Interest of the Country where the Asset is Located
Another main obstacle to asset recovery is that the country where
the asset is located does not have interest to help the country requesting
for assistance. In most cases, the interest to settle the case is merely upon
the country where the crime was committed. To exacerbate the problem,
some countries have become globally known as the destination of stolen
assets because they provide the necessary infrastructure for illegal assets,
because of their tax and legal structure. These countries are mostly small
countries with limited natural resources, therefore assets stolen overseas
are considered “investment”, and they become the world’s “safe haven”.
The existence of safe haven has disrupted the financial system
globally, and it has received major attention nowadays for its contribution
to the global financial crisis. In several global forums following the 2008
financial crisis such as the G-20, safe haven is a major problem that must
be reduced, although political dynamics put the issue back at the very
beginning: there is practically no interest for a country to assist another
59
See Transparency International Indonesia, “Rezim Pengembalian Aset Pemerintah
Indonesia Tidak Berhasil” 25 Agustus 2011, http://www.ti.or.id/index.php/pressrelease/2011/08/25/rezim-pengembalian-aset-pemerintah-indonesia-tidak-berhasil (last
access 25 May 2012).
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JURNAL OPINIO JURIS
country retrieve stolen asset, if that country actually gains benefit from
such illegal asset.60
5. Asset Tracing
Another practical problem is asset tracing. An asset is difficult to
trace if placed in countries where bank secrecy is guaranteed. Ownership
over an asset can also be structured by virtue of complex legal, financial,
and tax arrangement to distort the real owner of such asset. A criminal
perpetrator can transfer asset to other individual or corporation that is
still within its control to eliminate its formal ownership over the asset. For
example, trust system or nominee arrangement can make it difficult to
trace the real/beneficial ownership over an asset, as opposed to the
formal registered ownership.
From the perspective of the country where the crime was
committed, it is difficult to trace the asset because it falls beyond its
jurisdiction. Meanwhile, for the country where the asset is located, it may
not follow up asset recovery request because it is not within its interest,
and it does not want to incur the cost that is basically originated from its
taxpayer money.
6. The Cost of Asset Recovery
As a cross border initiative, recovering stolen asset is not a cheap
procedure and it requires enormous financial resources. A country may
assist another country for asset recovery, but if such country has no stake
in that cooperation, it may not be willing to incur the cost for that
initiative. A country may be involved in an asset recovery initiative if
there is a guarantee that all costs incurred will be reimbursed by the
country requesting for such assistance.
60
During the G20 Summit, in Seoul, South Korea, November 2012, countries agreed to
setup a global blue print against corruption. The blue print includes several policies,
including to prevent corrupt politicians from entering the financial market, safe haven
offshore jurisdiction, and asset recovery under UNCAC. See also G20 Research Group,
“G20 Finance Conclusions on Tax Havens and Money Laundering, 1999-2009”, August
2009, http://www.g20.utoronto.ca/analysis/conclusions/taxhavens.html (last access 25
May 2012).
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7. Counter Claim from the Alleged Perpetrator or from Third Party
In the event of an asset confiscation proceeding, there is a high
probability that the owner of such asset, or even a third party, may
challenge the confiscation, either through court proceeding or other
official channel. Either way, this counter claim may incur more costs than
what have been incurred already for the original asset recovery
procedure. The problem is whether the country where the asset is located
will be willing to allocate its resources to entertain this counter claim or
legal challenge, especially, again, when that country has no interest to
take the matter seriously.
In the case of Bank Century, there are challenges from Robert
Tantular in Hong Kong; or in Switzerland from a third party, a company
called Tarquin Ltd., that also claims ownership over Tellcorp, a company
controlled by Hesyam and Rafat. Counter claims can also come through
non-asset recovery proceeding but can affect the procedure.61 Still in the
same case, the two convicts, Hesyam and Rafat, have initiated arbitral
proceeding against the Indonesian Government in the ICSID
(International Center for the Settlement of Investment Dispute) and the
Organization of Islamic Conference (OIC). This has affected the procedure
and delayed the entire process of asset recovery.62
4. The Available Legal Solutions for Consideration
Having considered the abovementioned problems, the followings
discuss the available legal solutions that the Indonesian Government
must consider to make effective the asset recovery initiative.
61
“Optimis Kasus Century, Pasrah kepada Tommy”, hukumonline, 11 Maret 2011,
http://hukumonline.com/berita/baca/lt4d84ab3aeed23/optimis-kasus-century-pasrahkepada-tommy- (last access 25 May 2012).
62
“Pemerintah Tunjuk Arbiter Hadapi Hesham-Rafat”, hukumonline, 12 Agustus 2011,
http://pmg.hukumonline.com/berita/baca/lt4e44c755f0e2b/pemerintah-tunjuk-arbiterhadapi-heshamrafat (last access 25 May 2012).
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1. National Legislation and Bilateral Cooperation
Indonesia needs to conform its national legislations to the treaties
that country has ratified, including the UN convention on Transnational
Organized Crime, and more importantly, UNCAC. This is to encounter
the problem of different legal term and definition, as well as to
incorporate new legal concepts that can contribute to better asset
confiscation regime. One important concept is, among other, the notion of
illicit enrichment.
Further, from the country’s experience with MLA between
Indonesia and Hong Kong, a bilateral MLA arrangement is proven to be
essential to ensure the effectiveness of asset recovery. In practice, it is not
easy to induce a country to enter into MLA with Indonesia, especially if
that country is a popular destination for Indonesian criminals to stash
their assets and wealth. As a comparison, extradition agreement between
Indonesia and Singapore has been long overdue because this apparently
involves sensitive political and security issues that prevent the treaty
from ratification at the parliamentary level.63
2. The Use of Private Investigator and Private Attorney
In order to trace and find the assets for confiscation, a country or
party needs to consider engaging private investigator or private attorney
at the jurisdiction where the asset is located to gain better understanding,
knowledge, and culture of that foreign jurisdiction. This private
investigator or attorney will convey information to the foreign
government regarding the relevant assets that are hidden. The foreign
government will channel the information to the requesting government,
which will be responsible for all the costs incurred during the process.
Therefore, all the costs and resources will be borne by the requesting
government, instead of the foreign government.
The use of private investigator has been discussed, for example in a
study commissioned by the World Bank. Private investigator is
commonly used in an asset recovery initiative by virtue of civil
63
“S’pore refuses to renegotiate extradition treaty with RI” Jakarta Post, 29 September
2011, http://www.thejakartapost.com/news/2011/09/29/s’pore-refuses-renegotiateextradition-treaty-with-ri.html (last access 25 May 2012).
59
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proceeding, instead of MLA in criminal cooperation.64 However, there is
no practical prohibition to also implement this approach for MLA, and
therefore there will be close coordination between the two governments,
and the private investigator will bridge them. Global private investigation
firm has been familiar and engaged by private companies to detect
corporate fraud or insider trading, or to conduct forensic accounting.
With such skills, private investigation firm can add significant value to
asset recovery, in addition to its less bureaucratic work plan compared to
public institutions.
In the World Bank study, it is explained that one disadvantage of
private investigation firms is their inability to access state file and
documents that are still classified, or confidential information such as
bank account information. In contrast, public investigation agencies
(AGO, or financial intelligence unit) can oversee important activities
through their intelligence system. They are also equipped with authorities
to search, seize, intercept, or wiretap. Therefore, there is a need for strong
partnership between public and private investigation techniques. Private
firm can take more roles on obtaining public data, while it can also
overcome the problem of weak coordination among public institutions
and bureaucratic workflow. Private firm can also follow up the findings
of a public agency, which findings can only be obtained through its legal
authority that private firm is not entitled to.
3. Coordination among Authorities
Coordination among authorities is the cornerstone of an effective
international cooperation to follow up asset recovery request or
confiscation order. Legal problems will always arise regardless how well
an MLA treaty is drafted because different jurisdiction will always pose
different challenges. However, all can be encountered if there is mutual
understanding as to how to ensure the cooperation in an effective fashion.
64
Jean-Pierre Brun, Larissa Gray, Clive Scott, dan Kevin M. Stepehenson, “Asset
Recovery Handbook: A Guide for Practitioners”
http://www1.worldbank.org/finance/star_site/documents/arhandbook/ar_handbook_final.
pdf (last access 25 May 2012).
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Coordination is also vital to ensure the flow of information on facts or law
about the concerned asset.
Indonesia should have appointed national authority with
authorities within criminal justice system to commence investigation,
prosecution, and/or enforcement of court order. This will cut the chain of
bureaucracy significantly and reduce coordination problem among
domestic institutions.
4. Assisting Foreign Authority and Guaranteeing Financial
Disbursement
In order to deal with investigation in foreign jurisdiction and the
problem of counter claim, the Indonesian government must coordinate
with the foreign authority. After all, the burden of investigation will be
upon them, and counter claim will address them. Therefore, the
Indonesian Government must fully back up the foreign authority with
data and even resources. Further, the Government must consider issuing
guarantee to cover all the costs that the foreign authority incur in order to
commence all procedures.
5. The Role of International Organization
International organizations and foreign donors have become more
serious in assisting countries to combat transnational crime and to
develop capacity in order to support good governance agenda. The
World Bank, for example, devoted its resources through the Stolen Asset
Recovery (StAR) Initiative,65 to help policy formulation and law
enforcement with regard to asset recovery. UNCAC also appoints the
UN Office for Drugs and Crime (UNODC) as the treaty custodian, and
one of the tasks is to implement the UNCAC’s capacity building clauses
for developing countries. Indonesia must make use of these opportunities
very well and in strategic fashion, as long as it does not create financial
obligation for the country (for example, all assistance must be in the form
of grant instead of loan).
65
Lihat website StAR pada http://www1.worldbank.org/finance/star_site/ (last access 25
May 2012).
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5. Concluding Remarks
Recovering stolen assets is certainly not an easy task, let alone
pursuing the assets to overseas jurisdiction. There are legal considerations
(legal term differences, MLA treaty implementation) as well as technical
issues (costs and resources of proceeding). There is also political
consideration that one must aware of, and that may involve other issues
not related to asset recovery, which may unexpectedly become an
essential factor to shape state’s interests. Therefore, if the Government is
really serious about recovering stolen assets, it must come up with
strategic and innovative solutions.***
“ The law is reason, free from passion.”
- Aristotle -
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DEVELOPING INTERNATIONAL COOPERATION: A
NEED FOR EXPEDITING MUTUAL LEGAL
ASSISTANCE
Giri Suprapdiono
Abstrak
Dewasa ini, pemberantasan korupsi tidak lagi mengandalkan cara-cara yang
bersifat konvensional melainkan harus dilakukan dengan cara-cara modern,
canggih serta melibatkan kolaborasi antara para aparat penegak hukum dalam
lingkup internasional. Kolaborasi tersebut berupa kerja sama dan kemitraan
internasional yang terbentuk oleh pergeseran paradigm kejahatan korupsi yang
bersifat tradisional ke paradigma yang bersifat modern. Kerja sama internasional
dalam memberantas korupsi dapat dilaksanakan melalui jaringan penegakan
hukum di seluruh dunia. Bantuan hukum internasional dalam menanggulangi
masalah-masalah pidana (bantuan hukum timbale balik, ekstradisi, penyerahan
terpidana, operasi bersama, dan pertukaran data serta informasi) merupakan
bagian dari kerja sama internasional yang berfungsi untuk menjembatani
penyelidikan di dalam negeri dengan penyelidikan di luar negeri. Kegiatankegiatan penyelidikan yang dilakukan meliputi pertukaran informasi, investigasi
bersama, penahanan tersangka, pertukaran bukti-bukti, penyampaian kesaksian,
permohonan bantuan hukum timbal balik, pelacakan dan pengembalian buronan,
penelusuran asset dan repatriasi, ekstradisi, dan lain-lain.
Kata Kunci: Korupsi, KerjaSama, Internasional
***
“The most effective weapon against crime is cooperation”
(J. Edgar Hoover, Director of FBI imprinted at FBI Headquarter's Wall)
***
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JURNAL OPINIO JURIS
Modern Corruption
International cooperation and partnerships are inevitably shaped by
shifting international paradigm about corruption from the traditional to
modern. First, corruption is a global concern that is why corruption
eradication has to be globalized. Globalization provides opportunities for
increased international trade and investment, but as well as corruption.
Second, corruption is not merely a single jurisdiction issue but a multijurisdiction issue. The perpetrators of corruption are aware that overseas
jurisdictions are safe haven for them.
Third, global anti-corruption spirit has departed from conventional
to a more sophisticated and globalized modus operandi. It used to be that
corruption was treated as an ordinary and conventional crime, ending
only with the trial and conviction of the perpetrators. These days, it is not
enough to tackle down the criminals and put them in jail. It is also
important to track and recover the assets that are stolen and hidden all
over the world. Asset recovery is one paramount effort in the fight against
corruption and money laundering. Furthermore, proceeds of corruption
and money laundering will create another potential crime in fighting the
law enforcement process. The ill-gotten money will be a source for
another crime in order to cover crime under investigation or to support
obstruction of justice. The weaker and poorer corruptors are, the easier
the job of law enforcement becomes.
Fourth, a transnational corruption requires swift and effective
transnational law enforcement. The modus operandi often involves
countries abroad as loci for transaction, safekeeping of stolen assets,
hiding the evidences and sanctuary for fugitives. Today, corrupt officials
and the bribers, ill-gotten gains and evidence of the crime may all be in
multi-jurisdiction. Therefore, in this modern day and age, there needs to
be a better way to address corruption. The fact that international
cooperation has developed in recent years, there should not be any safe
haven for corruptors to hide in this world. Wherever and whenever they
hide, they have to be dealt with international law enforcement networks.
Thus, fighting corruption today can no longer rely on conventional
and traditional means. It must be done by modern, sophisticated means,
involving international collaboration between law enforcement agencies
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and authorities from all over the world. These days, corruptors are using
more sophisticated technologies, social media and smart intermediaries as
gatekeepers of crime. The means of communication shifted from wire
telephony to internet protocol based communication such as Skype,
Blackberry Messenger, WhatsUp, Facebook, Twitter, Gtalk, emails, etc.
Law enforcement must have capacity and competence to use the most
advance technologies used by criminals. Otherwise, corruptors will enjoy
the comfort zone of 'safe' technology.
Bridging Informal and Formal approach
There are two types of legal framework in international cooperation,
treaty based and non-treaty based. Treaty based can be divided into
multilateral conventions and agreements such as UNCAC (United
Nations Conventions against Corruption), OECD Anti-Bribery
Convention, AMLAT (ASEAN Mutual Legal Assistance treaty) and
bilateral treaties. While non-treaty based use MLA provision in their
domestic legislation and letter of rogatory.
Using multilateral conventions, multilateral and bilateral treaties or
agreement negotiation mostly as tools of legal assistance request is time
and resource consuming, requires legal formalities that may prolong
execution of request sand in some case quite slow and might compromise
confidentiality of case or sensitive information. Therefore, dealing multi
jurisdiction investigation should use informal approach as
complementary. It is a bridging process in dealing with formal approach
such as Extradition and MLA. This concept is well noted in international
best practices in handling international investigation processes.
Informal approach can also be used for exchanging information and
preliminary evidence for investigation lead, providing non sensitive data
such immigration records and open source information, tracing property
and non-financial records, getting investigation lead information, locating
the man-hunt, and other non-coercive measures. Formal channels is
mandatory for getting assistance in using coercive measure from other
jurisdiction, such as arresting, repatriating asset, obtaining bank record,
getting the evidence for court proceeding, freezing and seizing the assets,
etc.
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JURNAL OPINIO JURIS
The need of formal and informal channels has strong correlation
with the level of coerciveness of the request. The more coercive actions
will be taken, the need of formal procedure will take place. Most of the
international legal assistance falls under coercive measure that requires
MLA and Extradition as prerequisite. On the other hand, the more non
coercive measure will be taken, the more the uses of informal channels are
needed. However, both channels can be delivered at the same time as
both of them are complementary in practice.
FORMAL CHANNEL
•
•
•
•
•
•
•
•
Mostly falls under MLA &
Extradition arrangements
Taking Admissible
evidence or statements
Serving documents
Executing searches and
seizures
Conducting joint
Investigation
Taking Witness Statement
(Compelling witnesses)
Enforcing foreign court
orders (seizure, freezing
or confiscating of criminal
proceeds)
Good for Asset Recovery
Coercive Measures
INFORMAL CHANNEL
•
•
•
•
•
•
•
Conducting surveillance &
intelligence activities
Locating witness, suspect or
fugitive
Trace the proceeds of crime
Providing public, nonsensitive records (Citizen ID,
criminals records, Vehicle
registry, property registry,
company shareholding,
immigration records)
Sharing of investigative leads
Other types of assistance in
accordance with domestic law
Good for investigation
purpose and asset tracing not
for prosecution or court
proceeding
Non Coercive Measures
Level of Coerciveness and formality
(Modified from Kaeratithanachaiyos, 2012)
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JURNAL OPINIO JURIS
Informal approach strategy and goodwill of requested party are two
most important parts in expediting the process of international assistance
such as MLA and extradition, while the seriousness of domestic law
enforcement process must be in place. Goodwill of requested party
creates easier and faster procedure for requesting party, unlike noncooperative jurisdiction which creates the opposite. Most uncooperative
jurisdictions are unwilling to help and hiding their bad commitment in
their law procedure. The uncooperative jurisdiction has vested interest in
harboring the proceeds of crime on behalf of their national interest. This
interest is unacceptable by law enforcement since any systems and
persons who protect the crime are criminals as well.
Therefore, it is important that international community addresses
this issue to some reasonable measure and blacklist for uncooperative
jurisdictions in international legal assistance regime. UNCAC review
mechanism is the best legal framework to address this issue. The review
mechanism should govern the issue of multi-jurisdiction relationship in
handling corruption and build monitoring measures to ensure the
assistance sought by other parties should be handled seriously and
properly.
No Nationality for Criminals
The role of intelligence cooperation within multilateral networks
such as Interpol, ACA (Anti-Corruption Agency) networks such as
IAACA (International Association of Anti-Corruption Authorities), OECD
law enforcement group, Edgmont group, Euro Just, Corruption Hunter
Networks, SEA-PAC (South East Asia Parties against Corruption) are
crucial and important nowadays. Intelligence cooperation shifted from
negative cold war image of undermining other jurisdiction interest to
positive image of bilateral relationship in handling and exchanging
information in criminal matters, such as anti-money laundering regime,
anti-corruption regime and other form of data and information exchange
cooperation. Good intelligence cooperation and its networks among the
law enforcements around the world could defeat the criminals.
In some cases, corruptors who are united and have their own
networks can only be defeated by law enforcement networks. Criminal
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has their own syndicates in operating their modus operandi and require
support of pertinent power and resources. Networks are the key strategy
of winning the war. The best law enforcement agencies in the world puts
the cooperation strategy to create good and trusted networks i.e. FBIUSA, SFO-UK, ICAC Hong Kong including KPK in handling corruption
cases. Good cooperation will create easy access of information,
willingness to help the process, efficiency and effectiveness in getting the
result, maintain cooperating witness, and expedite the process. The FBI
slogan in their inner headquarter building “The most effective weapon
against crime is cooperation” gives the strong meaning of cooperation in
broader sense. The correlation between great success story of FBI in
operation and cooperation is strong.
Success Story
A couple months ago media coverage and public attention in
Indonesia was focused on the arrest of high-profile corruption suspects
who fled abroad as fugitives, and the ultimate repatriation of Muhammad
Nazaruddin (MN) from Colombia and Nunun Nurbaeti (NN) from
Thailand. Printed and electronic media fed public’s appetite with live
updates day and night. Yet many were unaware of the hard work behind
it that is cultivating international cooperation to ensure the success of
such complicated operations.
The repatriation of KPK fugitives from foreign jurisdictions is not a
simple undertaking. The case of MN and NN, for example, involve the
cooperation of Anti-Corruption Agency networks, Interpol, Colombian
authorities, including other law enforcements, especially the crucial role
of investigators and intelligence agents from anti-corruption bodies of
Singapore, Malaysia, United States, Laos, Thailand, Vietnam, Hong Kong,
China, Cambodia, the Dominican Island, Venezuela, Barbados, Maldives
and other jurisdictions. The complexity is that our power and authority
are limited in overseas jurisdiction and depend on the authority of our
counterparts in overseas jurisdiction. It also require adequate budget and
logistics for any urgent matters for example transporting the fugitive
using private jets (million US$), data and information cost, hospitality
with overseas counterparts, etc. Corruptors pays expensive and
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prominent lawyer in the respective jurisdiction who could delay any
process of repatriation by requesting “impunity or asylum request”,
extradition appeal, and other legal process. And if the case involve
politician, mafia in syndicated corruption, there is another big challenge
domestically and overseas due to obstruction of justice that might happen
in the process of repatriation.
The route of Multi Jurisdiction investigation of MN case
In the case of MN, law enforcement transport the wanted person
using private jets over 15 jurisdictions in more than 70 hours in flight (see
figure), using informal channels of Interpol, anti-corruption agency
networks and strong immigration networks. The method of repatriation
use immigration expulsion (not deportation) methods to repatriate the
wanted person, rather than formal channels such as extradition. In
addition, MLA has been sent ito many jurisdictions in order to secure
proper and formal process in the potential jurisdiction such as Cambodia,
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JURNAL OPINIO JURIS
Malaysia, Singapore, Vietnam, etc. These are just some of the examples of
using international cooperation networks in for tracking, locating the trail
and arresting the criminals. The extradition channel was not the option in
this case since legal formalities of the extradition will prolong execution
of requests and the negotiation is time and resource consuming, while
public expectation is extremely high in seeking the results of repatriation.
It is also similar in the NN case, informal and formal channels were
concurrently and simultaneously used. KPK has sent some MLA (Mutual
legal Assistance – in criminal matters) request to several jurisdictions to
locate and arrest the fugitive and submitted extradition request to
Thailand authority including producing arrest warrant. MLA requests are
intended to open investigation in respective jurisdiction by locating,
profiling, seeking information including movement records and to secure
the process of investigation in overseas jurisdiction. MLA authorizes
adequate power for overseas investigator to handle the case in the proper
and lawful way. MLA request can be delivered using Central Authority
to Central Authority (CA to CA) or Diplomatic Channels. Another formal
request in this case is extradition request using diplomatic channels. The
extradition request will derive the arrest warrant from the requested
parties. Arrest warrant is the coercive measure that falls under
extradition.
Repatriation of fugitives and their proceeds of crimes from abroad
are some of the benefits that international cooperation networks can
provide. Thus, the best way to investigate corruption and money
laundering in multi jurisdiction is by using both formal channels, MLA
and extradition, and cultivating informal channels in international
networks to expedite the due law process. The informal networks become
important in handling syndicated corruption to avoid the possible
obstruction of justice that happened in the state that capture corruptors
like in Indonesia and other developing countries.
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KPK International Cooperation: Strategy to expedite MLA
International
Relation
KPK
International
Cooperation
International
Legal
Assistance
• International Agreement
• Multilateral Cooperation
• International Forum
• Capacity Building
• Advocacy
• Coalition
• Fund Raising & donors
management
• Mutual Legal
Assistance(MLA)
• Extradition
• Asset Tracing and
Recovery
• Data and Information
Exchange
• Joint Investigation
• Other international
assistance
KPK strategy in international cooperation
International legal Assistance in criminal matters (MLA, extradition,
TSP (Transfer of Sentenced Person), joint operation, data and information
sharing) is part of KPK's international cooperation that serves as a bridge
between domestic and overseas investigation including asset recovery.
Activities carried out cover exchange of information, joint investigation,
suspect arrest, exchange of evidences, witness delivery, requests for
mutual legal assistance, extradition, tracking and return of fugitive, asset
tracing and repatriation, and so forth. In practice, international assistance
is implemented through both informal and formal approaches as
elaborated in the previous part of this article.
International cooperation against corruption can be conducted
throughout law enforcement networks worldwide. As either requesting
or requested party, KPK has exercised international assistance with
numerous jurisdictions including the United States of America, the
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United Kingdom, Australia, Colombia, Singapore, Thailand, Malaysia,
Brunei Darussalam, Laos, Vietnam, Cambodia, Hong Kong, P.R China,
Japan, Germany, Switzerland, Korea, Holland, East Timor, Canada, Spain,
Dominica, British Virgin Islands, etc. International network is an
indispensable force in combating corruption, because the current modus
operandi of corruption is using foreign jurisdictions as safe havens for
hideout.
Until early 2012, KPK has received MLA requests from UK, Japan,
Germany, Singapore and Brunei Darussalam. On the other hand, KPK has
sent 20 MLA requests as the requesting party to several jurisdictions such
as: Singapore (7), Hongkong (2), United States, Thailand, Cambodia, UK,
Japan, British Virgin Islands (BVI), P.R. China, Lao PDR, Australia,
Malaysia and Vietnam. In practice, KPK works closely with counterparts,
makes initial contact and maintain informal networks among the law
enforcement agency that authorize in corruption investigation.
KPK MLA experiences as requesting and requested party
MoU as bridging tools for further Cooperation
KPK has signed MoU with dozens of agencies around the world to
ensure the bridging process of relationship takes place smoothly. The
MoUs are just pieces of papers that are not legally binding and more as
an executive agreement between the parties. However, MoUs are beyond
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paper since they create opportunities to meet the partners more
frequently, ensuring commitments and filling the legal gaps among the
parties in different jurisdictions.
Up to 2011, the KPK has signed MoUs with international institutions
as follows:
1. ACRC (Anti-Corruption and Civil Rights Commission) Republic of
Korea
2. SNACC (The Supreme National Association for Combating
Corruption) Yemen
3. ACLEI (Australian Commission for Law Enforcement Integrity)
Australia
4. DIKR (Department of Interior and Kingdom Relations) Netherlands
5. SPRM/MACC (Malaysia Anti-Corruption Commission) Malaysia*
6. EFCC (Economic and Financial Crimes Commission) Nigeria
7. ACB (Anti-Corruption Bureau) Brunei Darussalam*
8. CPIB (Corrupt Practices Investigation Bureau) Singapore*
9. NACC (National Anti-Corruption Commission) Thailand*
10. ACU (Anti-Corruption Unit) Cambodia*
11. GIA (Government Inspection Authority) Lao PDR *
12. GIO (General inspection Organization) Iran
13. UNODC (United Nations of Drugs and Crime),
14. MOS (Ministry of Supervision) People's Republic of China
15. APSC (Australian Public Service Commission) Australia
16. FBI (Federal Bureau of Investigation) USA
17. AGD (Attorney General Department) Australia
18. DOJ (Department of Justice) Netherlands
19. DoFA (Department of Foreign Affairs) Netherlands
20. GI (Government Inspectorate) Vietnam*
21. SFO (Serious Fraud Office) United Kingdom
22. Ombudsman of Philippines*
23. INT the World Bank
____________
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JURNAL OPINIO JURIS
*Signed under SEA-PAC (South East Asia Parties against Corruption)
arrangement. SEAPAC is a multilateral forum that has nine anti-corruption
agencies within ASEAN countries.
The absence of MOU in some case does not become an obstacle in
international cooperation. In some jurisdiction, they do not need MoU to
cooperate in intelligence cooperation or informal cooperation in handling
investigation. However, the presence of MOU will give more opportunity
to cooperate since commitments among the agencies are in place.
KPK use multilateral forum as the forum for 'mingling' as 'the
overseas trust building” mechanism. Therefore KPK is active in
participation in more than 30 multilateral forums such as: G20 WGAC,
OECD WGB, UNCAC, IAACA, APEC ACT, SEA-PAC, ADB-OECD, ACA
Forum, ICPO-Interpol/ASEANAPOL, APG-FATF, IACC, AntiCorruption Hunter Networks, OIC/OKI Anti-Corruption & Enhancing
Integrity, etc.
Asset Recovery in KPK
KPK's asset recovery achievements from 2005 until 2011 are shown
in the table below:
The result of Asset Recovery
Success factors in achieving asset recovery derived from the
establishment of Asset Tracing and Recovery Unit (ATRU) within the
organization that has the authority and task to trace assets from the
proceeds of crime. Tracing assets starts during the investigation stage.
The tracing results give more negotiation position for KPK to obtain more
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asset recovery from convicted person. Usually, the amount of asset
tracing should be higher than the state loss as requested by prosecutor. In
short, the ATRU is more likely internal FIU who conduct financial
investigation to get all information available domestically and overseas.
Tracing overseas asset is one of KPK strategy to get more asset
recovery. Asset tracing in the overseas jurisdiction requires good
cooperation of respected authorities in the jurisdiction. KPK could not
trace the assets by themselves, since it will jeopardize the bilateral
relationship with the agency and violate the Jurisdiction rules. The best
way to trace the asset is by giving all information needed by international
counterparts in order to be investigated by them. However, during the
tracing process it becomes a challenge when some of the jurisdictions are
not cooperative and too 'paranoid' to help other jurisdiction.
Law enforcement relations among the jurisdiction in order to create
world free from corruption is a must, beyond the narrow interest of their
political, economy or other “vested interest”. Relations in justice should
be beyond the political relations. There is no nationality for criminals.
Therefore, there should not be any jurisdictions that protect them from
law enforcement.
“Among the Anti-Corruption Agency, we are not stranger,
but brother and sister in Justice. ” (Writer)
***
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THE ADMISSIBILITY OF EVIDENCE OBTAINED
ABROAD
Reda Manthovani
Abstrak
Dengan perkembangan ilmu dan teknologi, kejahatan lintas batas menjadi lebih
beragam dan bukti dari tindakan kriminal tersebut dapat terpisah-pisah di
berbagai negara. Oleh karena itu, kerja sama internasional diperlukan untuk
menanggulangi masalah tersebut. Ada tiga macam bentuk kerja sama
internasional, yaitu ekstradisi, Transfer of Sentenced Persons (TSP), dan Mutual
Legal Asssistance (MLA). Salah satu aspek penting untuk menghadapi kejahatan
lintas batas adalah bagaimana bukti yang terdapat di luar negeri dapat
digunakan di pengadilan Indonesia. Misalnya berkaitan dengan laporan visum
et repertum, transkripsi pemeriksaan para saksi atau bukti yang berada atau
dihasilkan di luar negeri. Otoritas pusat berperan penting dalam permintaan
penyitaan dan pengembalian aset dan perlu diberi kekuatan penegakkan hukum
untuk melancarkan tugasnya. Mengingat UU No. 1 Tahun 2006 tentang MLA
tidak menjelaskan tentang implementasi secara teknis hukum prosedural, maka
dapat digunakan Surat Edaran Mahkamah Agung No. 1 dan No. 2 Tahun 1985
sebagai pelengkap terhadap kekosongan hukum.
Kata kunci: extradition, TSP, FATF, Criminal Procedure Code, evidence
1. Introduction
The course and development of legislations concerning the
eradication of corruption are improving in terms of both quality and
quantity, but on the other hand, the modus operandi of the perpetrators
who take advantage of science and technology has also increased in
variation, which makes it highly possible for them to spread any evidence
of wrongdoing across a country or even across several different countries.
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Therefore, it is necessary to handle this matter through joint cooperations
between countries, and the main question that shall be discussed in this
paper is "How could evidence located abroad be used in the jurisdiction
of the courts of Indonesia? Examples of the type of evidence that shall be
discussed in this topic are visum et repertum reports which were
produced abroad, the transcripts of witness examination conducted
overseas, and exhibits seized abroad. Is the mechanism to obtain such
evidence already sufficiently regulated in Law No. 1 of 2006 on Mutual
Legal Assistance in Criminal Matters?
2. International Cooperation Mechanism
International cooperation in preventing and combatting crimes has
become an urgent need particularly in the field of law enforcement. There
are 3 types of international form of cooperation in the field of criminal
law. The first is the extradition of an indicted person who had fled justice
to another country; the second is the Transfer of Sentenced Persons (TSP),
commonly known as transfer of prisoners; and the third type is Mutual
Legal Asssistance (MLA) in criminal matters, which is related to the legal
processes involved in the investigation, prosecution and confiscation of
the proceeds of crimes.1
With reference to the three available international cooperation
mechanisms therefore the search and collection of evidences and the
forfeiture as well as confiscation (penyitaan dan perampasan) in a foreign
jursidiction could only be conducted by means of MLA in criminal
matters. Police to police cooperation could also be carried out but in some cases
resulted in violations of law and human rights. Indonesia has expreienced this in
a case whereby Indonesia was the requested country:
“The Indonesian National Police acting upon request by the Interpol
Malaysia seized a house in Jakarta which was bought by the accused from
proceeds of embezzlement of a Bank in Kuala Lumpur. The problem
occurred at the time of the transfer of the property to the Malaysian
Interpol due to the non-existence of laws governing such transfer. The
1
The writer’s way of stipulating of the types of international form of cooperation in the
field of criminal law does not represent the order of importance of each of the types
mentioned.
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Malaysian Interpol finally had to provide power of attorney letter to the
Embassy of Malaysia in Jakarta to sell the house and receive the proceed
of the sale. In another case the Indonesian National Police had also
forfeited stolen contact lenses in Surabaya that was stolen in Singapore
and the goods were then handed over by the Indonesian National Police
to the Singaporean Police”.
Although those examples may seem to have served the purpose of
the cooperation, nevertheless they are deemed as in violation of the
Indonesian Criminal Code of procedure. Law No. 8 Year 1981 regarding
the Criminal Code of Procedure governs that for confiscation could only
be conducted by investigators upon the permission of the local Head of
District Court or, may be confiscated and immediately followed by an
application to the Head of District Court for approval (Article 38 para 1
and 2 Criminal Procedure Code).
Indonesia’s experience as a requesting state is illustrated in a case as
follows.2
Police Investigators through NCB Interpol Indonesia had in the past
requested its counterparts the Hongkong and Singapore Interpol to block
accounts in their jurisdictions and succeeded. But now such request to
Hongkong could only be requested by the Minister of Law and Human
Rights of the Republic of Indonesia to the Minister of Justice of
Hongkong, while in the case of Singapore could not be carried out due to
the non-existence of MLA Agreement between the Republic of Indonesia
and Singapore. The Indonesian National Police/NCB Interpol
Polri/NCB-Interpol Indonesia has on occasion, through the Indonesian
Embassy in Bern requested the Swiss Authority to freeze the account of
an Indonesian company based in Switzerland. The Swiss Government
acted on the request but the release of the fund had to be based on a court
order.
One of the main problems faced by the Government of Indonesia
when positioned as a requested country is that it easily entertains a
requesting country’s request for assistance, while at the same time
ignoring the exisiting procedures in place. However, the opposite usually
2
Ibid, page 3.
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happens when Indonesia acts as the requesting party. The requested
countries that Indonesia has dealt with so far would usually impose their
respective domestic requirements in a rather strict manner, making it
quite challenging for Indonesia to acquire what it had requested to those
countries concerned. Based on such experiences, the Government of
Indonesia has learned that being helpful does not necessarily mean that
certain laws need to be violated, and that foreign jurisdictions, including
those to which Indonesia has provided “special treatment”, did not
always provide reciprocal responses.
3. The Implementation of Law No. 1 of 2006 on Mutual Legal
Assistance in Criminal Matters
The background on the enactment of Law No. 1 of 2006 is as follows3 :
•
•
Domestic need
To assist the law enforcement authorities in Indonesia in tracing and
pursuing the proceeds of crime of accused persons and evidence
overseas;
To combat the rising trend in transnational crimes.
International need
To comply with one of the recommendations of the Financial Action
Task Force on Money Laundering (FATF) and establish a strong antimoney laundering regime in Indonesia, which shall include a strong legal
basis in the area of MLA in Criminal Matters.
Law No.1 Year 2006 on Mutual Legal Assistance in Criminal Matters
defines the term mutual legal assistance as follows: A request to a foreign
country regarding investigation, prosecution and the examination in a
court proceeding.
The types of assistance include :
• To identify and search for a person/persons;
• Acquiring statements or other forms of statements;
• Provide documents;
3
Dr. Yunus Husein, SH, LLM, International Workshop on MLA, Jakarta 28-29
September 2005, page 1.
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•
•
•
•
•
•
•
•
Make an attempt for people to give statement or help in the
investigation;
Deliver letters;
Carry out request for search and seizure;
Confiscation of proceeds of crimes;
Regaining fines in connection with a criminal offense;
Prohibiting assets transactions and freezing assets that can be released
or confiscated, or that may be required to meet the fines imposed, in
connection with a criminal offense
Searching for assets that can be released or that may be required to
meet the fines imposed, in connection with a criminal offense and /
or;
Other assistance provided for by the Law.
The abovementioned arrangements are closely intertwined with the
evidentiary system as governed by the CRIMINAL PROCEDURE CODE,
which is the negatiefwettelijk theory. According to the theory, judges
should not produce a criminal verdict unless he/she is presented with at
least two valid evidence to support the belief that a crime had actually
occurred. However, technical regulations are still required for the further
application of the procedural law.
4. Evidentiary Requirements under Indonesian Law
Evidencing is the central point in the examination of a case during a
court proceeding. The proceeding of a court would determine whether a
person is found guilty of a crime, found not guilty or released from all
charges due to the fact that all charges are proven but nonetheless the acts
do not constitute a crime.
From the standpoint of criminal procedure, in principle, evidencing
starts at the pre-investigative stage of a criminal case with the aim of
finding an event that is believed to be a crime in order to determine
whether an investigation could commence. In reality there is already an
evidence gathering activity that took place at that stage. This also applies
at the investigative stage whereby the efforts to search and gather
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evidence are directed towards the purpose of revealing the crime that
took place and to later find the culprit.
The evidencing process is predominantly conducted during court
proceedings in order to prove the event of the specific crime and convince
the judges so that they would be more able to hand down fair judgments.
In the process of evidencing, the acquirement of evidence is an essential
factor during the pre-investigative stage, investigative stage and court
proceedings. As stated by Jeremy Bentham4:
“Evidence is a general name given to any fact, in a contemplation of it
being presented to the cognizance of a judge, in the view of it producing in his
mind a persuasion concerning the existence of some other facts – of some facts by
which, supposing the existence of it is established, a decision to a certain effect
would be called for at his hands”
In addition, William Twining5 also stated:
“Evidence had been defined as any matter of fact, the effect, tendency or
design of which is to produce in the mind a persuasion, affirmative or
dissafirmative, of the existence of some other matters of fact”.
Article 184 para (1) Criminal Procedure Code defines admissible
evidence as: witness statement; expert statement; letter; lead; and
statement of accused. Nevertheless in a corruption case, lead could also
be acquired from a)other evidence in the form of information delivered
verbally, sent, received or stored electronically by optical equipment or
the like; b) document, which is recording of data and information that are
visual, readable and or hearable that are produced with or without the
assistance of an equipment or medium, on paper, physical objects
excluding paper and those recorded electronically in the form of writing,
4
Jeremy Bentham, Rationale of Judiciale Evidence. (Bencher of Lincoln's Inn, First
Printed in 1827), page.210., liberal interpretation: evidence is the general name given to
any fact, as a consideration put forward to the knowledge of the judges, to give rise to a
judge’s conviction, the existence of some facts, in which few other facts support the facts
that are available, to support a decision taken in some respects by the judge.
5
William Twining, Rethinking Evidence-Explanatory Essays. (New York: Second Edition,
Cambridge University Press, Second Edition, 2006). Page 193. liberal interpretation:
evidence is defined as a variety of facts, which have the effect, tendency, or are designed
to produce a thought which leads to confidence, confirm or deny, the existence of facts
related to other facts.
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voice/sound, image, map, plan, photo, letter, signs, number or form that
has a meaning.
Evidence is a crucial and determining element in a court
proceeding. Evidence plays a determining role and decides the fate of an
accused. If the evidence produced is “insufficient” to support the
allegations against him therefore the accused will be released acquitted
from all the charges. On the other hand if the guilt of the accused could be
proven with the evidences produced as stipulated in Article 184 Criminal
Procedure Code and Article 26 A of Law Number 20 Year 2001 on the
Amendment to Law. No. 31/1999 on Corruption Eradication.
The evidentiary system adopted by Criminal Procedure Code could
be seen and explained in Article 183 that states as follows : “A judge shall
not hand down a verdict to a person unless based on a minimum of two
evidences produced the Judge is convinced that a crime had occured and
the accused had conducted the act of that crime”. The language of the
Article demonstrates that the Criminal Procedure Code sets a minimum
threshold in producing evidences before the court. The verification
system contained in the Criminal Procedure Code is referred to as the
verification system according to laws that are of negative nature.6
When discussing the Criminal Code or the Criminal Procedure
Code in Indonesia, one should consider the Criminal Code and the
Criminal Procedure Code of the Netherlands, which were derived from
the French legal system when the Kingdom of the Netherlands was under
the reign of Louis Napoleon Bonaparte in the 1800s. During the reign,
Napoleon imposed the French Penal Code in the criminal justice system
of the Netherlands. The French Penal Code is still applied, even though
the Netherlands has been an independent kingdom since 1813, but with
some changes. In addition to the Penal Code of France, the Netherlands
also adopted the Code d'instruction criminelle le (Criminal Procedure Code)
of France in 1838. In the French law relating to the burden of proof,
evidence is classified into 4 (four) types, namely: les témoins , aveu Preuve
vocale ou, ou les écrits Preuve instrumentale, et ou les presomptions Preuve
6
P A F Lamintang dan Theo Lamintang, Pembahasan KUHAP Menurut Ilmu Pengetahuan
Hukum Pidana dan Yurisprudensi. (Jakarta: Sinar Grafika Offset, Second Edition, 2010),
page 408-409.
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conjecturale. In this system, the evidence submitted should be appropriate
and limited to the evidence that has been specified in the Code
d'instruction criminelle.
However, since the sixteenth and seventeenth centuries, the system
was no longer implemented.7 In October 1789, the term “Intime
Conviction” appeared in a French Constitutional Court hearing.8 Intime
Conviction is the law relating to the burden of proof that considers the use
of all the facts and evidence submitted by the Prosecutor General but still
provide flexibility to the judge to assess all types of evidence based on
testimony, science, psychiatric or psychological elements, etc.9
Intime Conviction is often poorly understood even by Indonesian
legal experts, and that occassionally led to errors. For example, there is an
understanding that a judge or jury could pass a sentence without
evidence, by merely relying on faith alone.10 However, before a judge
decides whether or not a party is guilty or innocent, he must assess the
charges, the evidence submitted, the defense of the accused, and the
validity of such evidence as stated as follows: "La Preuve est ne peut être
libre mais par tous les moyens rapportệe. Elle l'doit être en les Principes
respectant imposés par la morale et la loyauté. La Recherche de la Preuve impose
le respect de la dignité humaine".11 If the evidence submitted was obtained
in an unauthorized manner that evidence can be disregarded and not be
used in the trial. As a comparison, in Indonesia, the scope of evidence in
the criminal procedural law is limited in some form (Article 184 of the
7
Ibid. Page 266.
Henry Leclerc, L’intime Conviction de juge : Norme Démocratique de la preuve.
Accessed at forum des Juriste francophones www.lejuriste.mantadalhilal.com, on 2
August 2011.
9
Jean Marie Fayol-Noireterre, L’intime Conviction, fonderont de L’acte de Juge.
Information Social, 2005/7 No. 127, page 46. Accessed on 2 August 2011
http://www.cairn.info/revue-information-sociales-2005-7 page 46.htm.
10
Roger Merle dan André vitu, Traité de Droit Criminel-Procédure Pénale. (Paris :
Édition Cujas, Cinquѐme édition, 2001). page 183.
11
Corrine Renault Brahinsky, Procédure Pénale, La Poursuite, L’Enquệte et l’Instruction,
le Jugement, le Mineur”. (Paris : Gualino Éditeur, Cujas, Cinquéme édition, 2003). Page
94. Liberal interpretation: “Evidence is limitless but cannot be raised at will. The process
must respect the principles which apply the principle of morality and order. The search of
evidence applies the recognition of respect towards a man’s rights.
8
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Criminal Procedure Code), while the expansion of evidence that can be
used is normally undertaken through the implementation of certain laws,
such as the Law on the Eradication of Corruption and the Law on the
Prevention and Eradication of Money Laundering, which gives the
impression that the legal system is quite rigid, when in fact restrictions on
evidence is no longer adopted in the country of origin of both the Penal
Code and the Penal Procedure Code.
5. Central Authority
International cooperation in the form of Mutual legal Assistance
(MLA) is essential in order to acquire evidence in a foreign jurisdiction.
An MLA by a requested country is prepared jointly, be the relevant
authorities (depending on the nature of the case and the authority over
the said case) is sent to by a requesting country through its Central
Authority to a requested country. Domestic agencies should coordinate
and cooperate. According to the Law on Mutual Assistance in Criminal
Matters, internal cooperation and coordination is conducted by the
Central Authority as a forum to request for assistance to foreign countries
or vice versa.
One of the main duties of the Central Authority is to obtain
evidence from foreign countries, which will require cooperation among
the said country’s institutions. Such cooperation shall involve the
Ministry of Foreign Affairs (Diplomatic Channel), the Police Force, the
Attorney General’s Office, the Corruption Eradication Commission, the
Financial Transaction Reports and Analysis Center, and the Department
of Justice (central authority). Coordination among those institutions
would be vital in determining the evidence that may be seized, searched,
and blocked by the competent agencies in foreign countries.
The Central Authority must take an active role in confiscating and
seizing assets obtained through corruption. The role that it must play
should not just be limited to communicating with authorities in foreign
countries, but should also cover cooperation with agencies in the Central
Authority’s respective country. Cooperation with local agencies are vital,
as it would be very important for the Central Authority to be able to have
access to various facilities and data, such as access to bank account data
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that can only be provided by the Financial Transaction Reports and
Analysis Center, case files, as well as other information possessed by
different institutions in the country. This type of coordination would
greatly assist the Central Authority in its attempt to communicate with its
foreign counterparts. In addition to the abovementioned facilities and
infrastructure, the availability of adequate human resources within the
Central Authority is also another factor that should be taken into
consideration.
However, in practice, the Central Authority does not possess
sufficient power or authority, and this situation could hamper the law
enforcement activities that it is supposed to undertake, and further extend
the bureaucracy that was not supposed to exist initially. The Central
Authority should therefore be the agency that has law enforcement
powers in its respective field, so that the coordination activities between
law enforcement agencies, both domestic and foreign, can be established
quickly. In regards to the duty of conducting liaison relationships with
foreign countries, the resources offered by the Ministry of Foreign Affairs
through its coordination with the Overseas Missions or Embassies of the
respective government alone should be considered adequate.
6. Mechanism for Collecting Evidence Abroad
The Application of Law No.1 of 2006 on Mutual Legal Assistance in
Criminal Matters is the basis for criminal law enforcement officials to
obtain evidence abroad. However, the legal document itself and the
Criminal Procedure Code has not fully addressed the technical details
regarding the question on how to collect and utilize such materials as
valid evidence within the jurisdiction of Indonesian courts. For example,
if an Investigation Team from Indonesia which is investigating allegations
of corruption within the borders of the country discovers that some of the
evidence, witnesses (both Indonesian and foreign nationals), and property
obtained from the proceeds of the crime are located outside the country,
then it is not yet fully clear what mechanism shall be undertaken to collect
witness testimonies and exhibits that could be admitted in Indonesia.
Considering the abovementioned explanations, it is therefore
relevant to address, in this paper, that the procedural vacuum which
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exists in the Criminal Procedure Code and in Law No.1 of 2006 may
actually be covered by using:
a) The Supreme Court Circular Letter No. 1 of 1985 dated February 1,
1985 on the Admissability of Transcripts of Witness Examinations and
Visum Et Repertum Conducted Overseas by Foreign Officials. In this
circular, the Supreme Court argued that the witness investigation
reports produced by police officers from another jurisdiction or in
his/her own respective jurisdiction can be used as valid evidence if it
meets the following requirements:
• The official records of the investigation should clearly mention the
presence of an investigator who represents the Indonesian Police
Force or other entities.
• If the presence of an investigator from the Indonesian Police Force
is not included, the official report must be approved by the
Embassy of the Republic of Indonesia/Overseas Mission of the
Republic of Indonesia in the country concerned.
• The witness in question should be heard under oath before the
investigator from the Indonesian Police Force / investigators from
other entities or before officials of the Embassy of the Republic of
Indonesia / Overseas Missions of the Republic of Indonesia in the
country concerned.
• Visum et repertum produced by officials of foreign countries
would be admissable as valid evidence if the visum et repertum
was approved by the Embassy of the Republic of Indonesia /
Overseas Mission of the Republic of Indonesia in the country
concerned.
b) Circular Letter No. 2 of 1985 dated February 1, 1985 on the Selection of
Witnesses Ordered to Appear in Court. In this circular, the Supreme
Court argued that the investigation report made by police officers
from another jurisdiction or in his/her own respective jurisdiction has
to be used as valid evidence if it meets the following requirements:
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•
•
•
The official records of the investigation should clearly mention the
presence of an investigator who represents the Indonesian Police
Force or other entities.
If the presence of an investigator from the Indonesian Police Force
is not included, the official report must be approved by the
Embassy of the Republic of Indonesia/Overseas Mission of the
Republic of Indonesia in the country concerned.
The witness in question should be heard under oath before the
investigator from the Indonesian Police Force / investigators from
other entities or before officials of the Embassy of the Republic of
Indonesia / Overseas Missions of the Republic of Indonesia in the
country concerned.
7. Conclusion
To obtain evidence located abroad, international cooperation
through mutual legal assistance in criminal matters is required.
Nevertheless, when such actions are undertaken, the authorities involved
should also consider the legal basis of each written sources of law that
includes the law on mutual assistance in criminal matters, the criminal
law, and other related regulations. Attention towards the aforementioned
sources of law is critical in order to attain legitimate recognition for the
said evidence.
As the coordinator for mutual legal assistance in criminal matters
between different jurisdictions, the Central Authority has a very important
role in putting forward requests for the seizures and foreclosures of assets
and other evidence. In order to achieve the acceleration and reduction of
the bureaucratic process involved in such activities, the Central Authority
should be granted law enforcing powers.
Law No.1 Year 2006 on Mutual Legal Assistance in Criminal Matters
does not set out more details regarding the technical implementation of
the procedural law. As a result, currently, there are still constraints and a
lack of clarity, which is why the Supreme Court Circular Letter No. 1 and
No. 2 of 1985 could be used to complement the legal vacuum in regards to
the procedural law on the mutual legal assistance in criminal matters
which are regulated in Law No. 1 of 2006.
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PRACTICAL HURDLES TO EFFECTIVE
INTERNATIONAL RECOVERY OF STOLEN ASSETS
Gretta Fenner Zinkernagel and Anja Roth
Abstrak
Korupsi merupakan salah satu faktor penghambat pembangunan. Dalam
kaitannya dengan hal tersebut, upaya pengembalian aset menjadi hal yang
penting bila dilihat dari perspektif kebijakan pembangunan. Selain membahas
tantangan-tantangan dalam praktek pengembalian aset dari segi teknis dan
politis-ekonomi dengan memberikan contoh-contoh kasus di berbagai negara,
tulisan ini juga memberikan rekomendasi mengenai bagaimana masyarakat
internasional dapat menanggulangi permasalahan tersebut, di antaranya dengan
mendorong keterlibatan aktor non-negara dalam proses pengembalian aset,
peningkatan kapasitas pejabat penegak hukum yang lebih berkelanjutan, serta
penggunaan aset yang telah dikembalikan bagi proyek-proyek sosial.
Kata kunci
: UNCAC, development, resources, non-state actors
I. INTRODUCTION
1.
A LITTLE HISTORY OF ASSET RECOVERY
Although corruption is not a new phenomenon, it has taken the
international community some time to take concerted efforts against it.
During colonisation, corruption was a welcome means to buy political
allegiances. Even after decolonisation and especially during the cold war,
former colonial powers and their corporations as well as new political
players continued to use corruption to secure political influence and
access to markets and resources.1 Many of the heroes celebrated as
liberators from colonialism and the second generation of leaders in the
decolonised countries ultimately succumbed to the seduction of newly
1
Pieth, M. 2008. Recovering Stolen Assets – A New Issue. In: Recovering Stolen Assets.
Pieth, Mark (ed.). Bern: Peter Lang AG.
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found, easy riches and lived sumptuous lives while their people
sometimes barely survived on a dollar or less per day. Corrupt
politicians, kleptocrats and dictators stole enormous sums of money
either by directly depleting the state coffers – tales are being told of
Nigeria’s late dictator Sani Abacha’s private chauffeur collecting trucks
full of cash from the central bank every week to finance the personal
needs of Abacha and his family – or by devising more or less
sophisticated kick-back schemes that led to selling out their countries’
most valuable assets, notably natural resources and state enterprises, to
foreign companies, to name but two typical corruption typologies.
Whilst a number of regional legal instruments, such as the InterAmerican Convention against Corruption (1996), the OECD Convention
on Combating Bribery of Foreign Public Officials in International
Business Transactions (1997), the Civil and Criminal Law Conventions
against Corruption of the Council of Europe (1999), and the AU
Convention on Preventing and Combating Corruption (2003) have helped
to raise the profile of the fight against corruption in the international
arena, it was not until the inauguration of the United Nations Convention
against Corruption (UNCAC) in 2005 that states from across the globe for
the first time conjointly acknowledged the destructive forces and effects
of corruption and, more importantly, decided to take action. Of particular
significance: The UNCAC was also the first international legal
instruments that acknowledged the fundamental right of states to have
their stolen assets repatriated.
2.
WHY SHOULD WE BE CONCERNED?
Despite these increased efforts by the international community to
prevent and combat corruption, nearly a decade after the inauguration of
the UNCAC the World Bank still estimates the global annual volume of
corruption to be between USD 20 and 40 billion.2 This corresponds to
about 15-30% of all official development assistance (ODA). Whilst this
may be of concern to taxpayers in donor countries, the citizens of the aid
2
World Bank and UNODC. 2007. Stolen Asset Recovery Initiative: Challenges,
Opportunities, and an Action Plan. World Bank Group and United Nations Office on
Drugs and Crime (UNODC), p.9.
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recipient countries are the ones suffering from this most. Monies that are
lost through corrupt activities are missing in such crucial areas as the
fight against HIV and malaria for example. They are also missing in
education, infrastructure and social care. Corruption of course is not
exclusive to the developing world – embezzlement of public funds is also
a well-known phenomenon in certain European countries. However, the
negative impact of corruption on poverty reduction, economic growth
and social stability is particularly drastic in developing countries. As they
are hindered in their development by the masses of stolen assets stashed
away in international financial centres, they are often referred to as
“victim countries”.
When it comes to the efforts to repatriate these stolen assets, the
small amounts that have been repatriated internationally in the past 15
years, which on average come up to USD 333 million per year or USD 5
billion in total, stand in sharp contrast to the sums estimated to be lost to
corruption every year.3 Yet already “only” USD 333 million buys enough
lifesaving HIV/Aids medication for approximately 20 million people, or
enough vaccines to immunise between 200 and 300 million people against
malaria. When we consider these figures, it is easy to imagine the
potential impact on development if the estimated USD 20-40 billion of
corruption per year were either never lost to corruption in the first place
or at least repatriated again promptly by the financial centres that
harbour them.
Finally, if these humanitarian and moral considerations are not
enough for developed countries and financial centres to take effective
steps to prevent further stolen funds from entering their jurisdiction and
to effectively repatriate such funds should their preventative barriers
have failed, legal (UNCAC and implementing domestic legislation) and
reputational risks hopefully will be. Indeed, one of the challenges for the
countries of the North serving as the destination or transit station of
illegal assets (the “requested countries” in asset recovery speak) is the
allegation that they have become rich and continue to make money with
3
Stephenson, K.M., L. Gray, R. Power, J.P. Brun, G. Dunker and M. Panjer. 2011.
Barriers to Asset Recovery: An Analysis of the Key Barriers and Recommendations for
Action. World Bank:Washington, DC ., p.11.
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the assets of less developed regions and, ultimately, of poor people.
Unless financial centres wish to continue being exposed to this criticism,
they should prove their commitment to the global fight against
corruption, the repatriation of asset recovery and, ultimately, the
alleviation of poverty, by participating actively in the international asset
recovery processes.
II.
PRACTICAL BARRIERS TO ASSET RECOVERY
Before looking into the specific obstacles to asset recovery, it is
worth mentioning a few particular complexities in relation to
international as opposed to national asset recovery cases. As is almost
self-explanatory, international cases usually involve multiple
jurisdictions. By way of example, in the case of Sani Abacha mentioned
earlier, at least six jurisdictions, including the Bahamas, Jersey,
Liechtenstein, Luxemburg, Switzerland and the UK were involved in
addition to Nigeria. In addition, the sums in international cases tend to be
particularly high. The same Sani Abacha is estimated to have embezzled
some USD 3 to 5 billion4, while Ferdinand Marcos of the Philippines is
estimated to have stolen some USD 5 to 10 billion.5 This results in
extremely long proceedings, as for example in the case of Marcos where
the time span between the first freezing measures in Switzerland and the
final repatriation was 17 years. As a result, one can say that international
asset recovery cases are challenging as a rule. The following chapters will
take a closer look at the very practical, sometimes almost profane
challenges to successful asset recovery that add to these complexities,
dividing these into i) technical, ii) politico-economic and iii) development
policy challenges.
Finally, it is worth mentioning that the practical hurdles discussed
in this paper are in many cases issues that impede not only effective asset
recovery, but that hamper effective corruption prevention and
4
Jimu, Ignasio. 2009. Managing Proceeds of Asset Recovery: The Case of Nigeria, Peru,
the Philippines and Kazakhstan. Basel Institute on Governance Working Paper Series No.
6.
5
The World Bank. 2007. Opt. cit.
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enforcement in general. Indeed, it is important to understand that the
recovery and repatriation of stolen assets is only the last in many steps
that start at the preliminary investigation and end with the effective
transfer of stolen asset to the country of origin. As a consequence, when
we discuss practical hurdles to asset recovery we have to look broadly at
the process of enforcement of anti-corruption legislation.
1.
TECHNICAL OBSTACLES
a) Lack of capacities
One of the biggest and most serious challenges for asset recovery is
missing capacities in requesting countries. Oftentimes, countries that have
been brought to the verge of collapse by a corrupt ruling class do not have
sufficiently functioning law enforcement and judicial bodies to carry out
the necessary preliminary investigations properly. The experience of the
International Centre for Asset Recovery (ICAR) has shown that tracing
assets or analysing financial data are among the key skills lacking in
many of the concerned agencies. Many countries also do not have access
to basic infrastructure such as computers or internet connections. This
seriously impedes all stages of the investigation, including preinvestigation and financial intelligence gathering, and renders proper case
management and documentation difficult.
This in turn presents a considerable challenge also at the stage in
which mutual legal assistance (MLA) requests should be submitted to and
admitted by foreign courts. Cases like the one of Haiti’s Jean-Claude
Duvalier show how important it is that the concerned authorities in the
requesting countries possess certain key capacities and skills, notably in
relation to the submission of MLA requests. Haiti at the time of its request
was what would be considered a “failing state” and its MLA requests
were either insufficient or not forthcoming at all. This nearly resulted in
the asset freezing measures having to be lifted by Switzerland because of
the statute of limitations running out. The result would have been that the
family of Duvalier would have regained their illegally acquired monies.
To avoid this, the Swiss Federal Council, in a rather unconventional and
unprecedented step, had to use the Constitution as a legal basis to extend
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the freezing measures until an adequate MLA could be submitted.6 Whilst
it is to be applauded that the Swiss state took this measure, it is clear that
we cannot rely on such systems in the future and capacity building
measures are thus crucial.
b)Lack of resources
Lack of (financial) resources is also often a major concern for many
requesting countries. As was seen at the example of Marcos of the
Philippines, asset recovery proceedings, from the stage of preliminary
investigation to the effective repatriation of the stolen and recovered
assets, are sometimes extremely lengthy and, as a consequence,
potentially expensive. Also, when skills are not available in the
authorities of the requesting states, they often have to resort to hiring
legal representation both locally as well as in the requested countries,
which is easily available but can easily become a considerable financial
burden. A particular challenge of financial nature arises in preparation for
or during court proceedings abroad, which may be decidedly more
expensive than in the requesting countries.
International initiatives such as the Basel Institute’s ICAR and
programmes offered by the World Bank and UNODC offer such
assistance at low rates or even free of charge. Sometimes the requested
states agree to cover the costs of a legal counsel for the requesting state, as
was done by Switzerland in cases relating to Mali and Haiti, to ensure
that an important asset recovery case would not fail due to a lack of
capacities or resources in the requesting state. Yet all these programmes
can only serve a limited number of cases and countries. They also only
offer short-term solutions to a more fundamental problem which
requesting states have to address. As a result of this lack of resources,
many cases are either never properly investigated or, if they are, their
investigation further depletes the limited resources of the concerned
requesting state without guarantee of success. The vulnerability of
developing countries in this regard is best illustrated by so-called vulture
funds to which some requesting countries in the past have fallen victim.
6
More information on the case Duvalier and other important international asset recovery
cases at: http://www.assetrecovery.org.
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c) Formal requirements for MLA requests
Formal requirements for MLA requests are also a challenge on their
own. Each country has their own specific requirements as to how requests
have to be filed and what criteria have to be fulfilled. In Switzerland for
example, according to the Federal Act on International Mutual Assistance
in Criminal Matters (IMAC) of 1981, foreign requests and their enclosures
shall be submitted in writing only and either in German, French or Italian
language or be accompanied by an officially certified translation into one
of these languages. It must also meet a number of formal contents
requirements (e.g. contain information of the subject matter and the
reason for the request, a legal qualification of the offence(s), information
about the office from which the request emanates and, if necessary, the
authority having criminal jurisdiction, and finally as exact and
comprehensible as possible information about the person being the target
of the criminal proceedings. The request should also contain a summary
of the relevant facts and the text of the regulations applicable at the place
where the offence was committed. Finally, the request should be
accompanied by the original or an officially authenticated copy of an
enforceable judgment and the original or an officially authenticated copy
of the warrant of arrest or of any other document issued in accordance
with the regulations of the requesting State and having the same effect.7
Other countries have similar specific requirements, though they vary
from one country to another, and this variation presents a considerable
challenge to foreign jurisdictions.
Adding to this requirement to comply with certain formats and
conditions for submitting an MLA request is that when major corruption
cases are uncovered, it can result in strong national political and public
pressure for the relevant authorities to act quickly. As a result, MLA
requests are often submitted too hastily and with insufficient information.
This has been observed in some cases that came to light following the
7
This is not an exhaustive list of the requirements under Swiss law but a summary of key
provisions of IMAC. For further information on requirements under Swiss law, consult
the relevant legislation (IMAC of 1981) at
http://www.assetrecovery.org/kc/node/ca0de4af-a33e-11dc-bf1b-335d0754ba85.2
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Arab Spring. Asset recovery efforts might be scotched as a consequence
because such vague or technically insufficient requests might be labelled
as “fishing expedition” and as a result will not be admitted despite the
fact that with more careful preparation they could possibly yield
significant results.
d) Unclear institutional responsibilities
Another technical hurdle to effective asset recovery, as to effective
corruption prevention and enforcement in general, relates to the
institutional distribution of responsibilities in requesting and requested
states. In many countries, requesting and requested alike, not one but
many institutions share responsibilities in relation to anti-corruption and
asset recovery. This is indeed no problem as such, as also highlighted by
the UN Convention against Corruption (UNCAC) which simply
stipulates the need of “a body or bodies, as appropriate, that prevent corruption
(…)” (Art. 6 UNCAC) and that each state party shall “(…) ensure the
existence of a body or bodies or persons specialized in combating corruption
through law enforcement” (Art. 36 UNCAC).
However, it is clear that whatever the exact institutional setting, the
respective responsibilities of each institution involved need to be clear
and not competing or overlapping, the institutions need to follow a single
country-wide strategy, and inter-institutional communication and
cooperation needs to be systematised and enforced. This unfortunately is
often not the case and, as we will discuss in the next chapter, the
establishment of multiple institutions with overlapping and inconsistent
mandates is indeed sometimes employed to actively sabotage a country’s
efforts to combat corruption.
In asset recovery, it may mean that cases are investigated multiple
times but information is not shared so that each institution ends up with
an insufficient dossier. When these institutions compete for public funds
or for political influence, they will not willingly share this information
and as such may consciously or unconsciously harm the case. In such a
complex institutional setting, a central authority in charge of requesting
and receiving MLA requests may exist, but experience shows that this
authority is often not chosen due to its particular capacities or its
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positioning within the broader institutional setting, but for political
reasons. Depending on how clearly the tasks in relation to the submission
or execution of an MLA request, this will then have a (negative) impact
on the effective processing of such requests.
e) Gaps in of ineffective enforcement of banking regulations in the
requested states
Even though the international financial sector has undergone a
considerable revamp of its regulatory environment and, thus, of its
internal control and compliance systems, the fact that considerable
amounts of money continue to be lost to corruption and end up in
financial centres of developed countries indicates that regulations and
strategies to prevent illicit flows of capitals are not yet sufficient, or not
sufficiently enforced. This is further aggravated by the fact that criminals
develop ever more elaborate techniques to cover-up the origin of their
illicit and it is becoming increasingly difficult for financial institutions to
identify suspicious transactions. In turn, the countries that are the rightful
owners of such stolen assets will have a difficult time tracing these assets,
proving their criminal origin and ultimately making a case to recover
them.
2.
POLITICAL ECONOMY BARRIERS TO ASSET RECOVERY
a) Lack of political will
Decidedly the single most powerful obstacle to asset recovery efforts
is lack of political will. If key people at the highest political level lack the
will to curtail corruption and recover assets, this often translates into a
lack of effort to create and maintain the necessary legal and institutional
structures. An example of this is the trend of newly elected leaders to
create a new anti-corruption institution to demonstrate their will to fight
corruption. Often, the promise of a new anti-corruption law or agency is a
key component of election campaigning. However, as seen earlier, this
can subsequently lead to the opposite result, with even more anticorruption institutions not cooperating, creating competition rather than
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cooperation and aligned and reinforced efforts. Ultimately, the anticorruption architecture of a country can suffer more than it benefits.
Lack of political will may also translate into efforts to actively
undermine existing anti-corruption structures. In Indonesia, the public is
observing carefully how the political leadership including the President
and his cabinet and Parliament treat the Corruption Eradication
Commission KPK. Notably the election of commissioners is always
widely discussed and seen as a signal for the level of political support to
the anti-corruption cause. Indeed manning anti-corruption institutions
with weak leadership is a popular measure in some countries to
undermine anti-corruption efforts, as is interference with anti-corruption
agencies’ operational activities or curtailing the agencies’ budgets.
Alternatively broad anti-corruption reforms are announced and possibly
even implemented, but when the scope of these reforms is looked at more
closely one notices that key areas (e.g. procurement or other corruption
prone services; political party financing, conflict of interest regulations in
the executive and other areas too likely to expose those in power) have
wilfully been excluded from reform. Another way of undermining anticorruption efforts is the wilful institutional weakening of key agencies.
For example, despite multiple domestic or foreign funded programmes to
establish a comprehensive case management system, case documentation
in many countries remains extremely poor. This makes it easy to delay an
effective case investigation or even to have key evidence disappear
without anyone noticing for a long time.
b) Conflicts of interest
On the side of requested states or financial centres, lack of political
will is sometimes partially the result of a lack of viable economic
alternatives. A small island state with an economy primarily consisting of
offshore banking services will be reluctant to introduce tighter banking
regulations that could potentially destroy the very foundation of its
economy. Whilst the authors of this paper do not in any way endorse this
rational, the point is worth noting as it illustrates that preventing
corruption and money laundering is not always as clear cut an issue as it
may seem at first sight, and conflicting interests and priorities are at play.
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In requesting states, lack of political will mostly derive from either
personal or institutional conflicts of interest. Political and economic elites
are often closely entwined and corruption at these interfaces is ripe. Elites
in these countries have thus a vested interest in curtailing anti-corruption
efforts, and this holds usually true for the ruling elite as well as the (in
democracy) opposition. Also, whilst politicians may be replaced in
democratic elections, in political coups or in popular uprisings as recently
in a number of MENA region countries during the so-called Arab Spring,
vested interests prevail in the bureaucracy as it is not possible to replace
an entire state apparatus.
Conflicts of interest is also a serious problem at lower levels of the
administration, when individual public officials are confronted with the
choice of accepting bribes and actively or passively resisting anticorruption reform or with taking a strong stance against corruption. The
conflict may first and foremost be financial, when salaries are too low to
nourish a family, or the conflict may be in consideration of one’s
professional career when it becomes clear that without corruption one
will ultimately hit a glass ceiling. The conflict may also be a combination
of these two factors and contain a social component, as is the case in
Bhutan. The Bhutanese Anti-Corruption Agency, which must be
applauded for the excellent work it does in the corruption prevention and
enforcement, suffers enormously from its inability to attract enough and
qualified staff. The reason for that simply is that an ACC staff member
must fear social ostracism, and this usually concerns not only him or her,
but his/her entire family and relatives. In a small society like Bhutan, this
can have substantial consequences on the lives of those concerned. It
takes thus great courage and personal sacrifice to actively engage in the
fight against corruption, and whilst we are recounting the example of
Bhutan, this situation is well known from other countries too where anticorruption fighters are not only exposed to social ostracism but indeed to
threats to their lives and those of their families.
c) Corruption in anti-corruption institutions
Another obstacle that intertwines closely with the conflicts of
interest situations discussed in the previous sections is the fact that in
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some countries, the very institutions tasked with enforcing anticorruption legislation are amongst the most corrupt institutions in the
country. The Global Corruption Barometer (GCB) 2007 of Transparency
International (TI) finds that the police and the judiciary are the most
corrupt institutions across the world, i.e. in low, middle and high income
countries alike.8 This offers fruitful ground for the independence of the
judiciary to be jeopardized and opens doors to the political elite to
influence the judiciary in an unduly manner.
d) Misuse of asset recovery for political power games
Political power games and sometimes even actions of revenge can
also be the reason for a sudden increase in anti-corruption efforts and
attempts to trace and repatriate stolen assets. When the judiciary and law
enforcement agencies are not free from political influence (see previous
section), there is a risk that ruling parties instrumentalise and manipulate
these institutions in order to settle scores with opposition parties or other
political exponents that may be a threat to the continuity of their “reign”.
A case in example is Bangladesh where the two major political
parties have been playing “revolving door” with the leadership of the
country since its independence and have both been marked by excessive
levels of corruption. In addition, the top leadership of the two parties,
Sheikh Hasina (Bangladesh Awami League) and Khaleda Zia (Bangladesh
Nationalist Party), have historically been living in a personal and political
feud for decades. It is commonplace whenever one of the two takes over
Government in another, more or less transparent election, to announce a
new push to fight corruption and, as a first step in this new push, to
launch investigations into all members of the opposition party, notably
the leader and their families. The problem here is not, as is the case in
other countries sometimes, that the accusations of corruption are
unfounded. They are most likely true, although of course we will abide
by the rule of “innocence until proven”. Yet when anti-corruption and
asset recovery become instruments in the hands of kleptocratic regimes
with the aim of weakening political enemies and the opposition, the anti8
Transparency International. 2007. Global Corruption Barometer. Berlin: TI.
http://archive.transparency.org/policy_research/surveys_indices/gcb/2007.
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corruption movement looses all its credibility and, as it clearly being
manipulated, its effectiveness.
Such situations also pose challenges to the requested countries. They
risk becoming the puppet of political power games that are based on no
actual interest in recovering stolen assets or prosecuting a corruption
case. Becoming such a puppet in turn can reflect badly on the requested
country: Mostly the power games are about accusations and less about
leading a serious investigation. As a consequence, often the cases do not
come to a satisfactory closure and assets are neither properly traced nor
eventually recovered so as to be repatriated. To please the local electorate,
the requesting country will accuse the requested country of lack of
cooperation, of stealing foreign countries’ wealth, and of not being serious
about asset recovery, whilst the requested country is hard pressed to act
on little to no valid information. As a result, the requested countries will
become increasingly suspicious and hesitant about being particularly
forthcoming in asset recovery cases and other, more founded requests for
cooperation will fall victim to this climate of suspicions.
e) Political Considerations form the Side of the Requested State
Some requested states undertake long considerations before
deciding whether or not assets are finally repatriated. In theory, the case
is clear, of course: If the monies legally belong to another country it is
difficult to argue why they cannot be transferred back. The reality
however is such that requested states might have the well-founded
suspicion that the money in question will be re-laundered and disappear
once it is repatriated. As described above, sometimes regime changes only
come with a change in name of the respective leader, but the level of
corruption and the corrupt political and networks remain exactly the
same. Even worse as discussed above, asset recovery and anti-corruption
may simply be instrumentalised for political power games. Consequently,
monies are recovered from one corrupt political leader only to transfer
them back to the next.
Of course, if such a scenario is likely, the requested countries are in
a conflict of interest themselves: on the one side they will want to adhere
to the law and court rulings and repatriate the monies that have been
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hidden in their jurisdictions. On the other side, they will want to follow
through with their own anti-corruption commitments, and transferring
previously stolen monies back into the hands of similarly corrupt regimes
certainly does not further such a cause. It can become difficult to balance
these considerations with the strictly legal ones.
3.
BARRIERS SEEN FROM A DEVELOPMENT POLICYPERSPECTIVE
a) Political coherence in the requested country
The previous section on political considerations of the requested
countries also points at another potential dilemma that requested
countries have and that can seriously undermine effective asset recovery,
namely that of policy coherence. In requested countries, as in any country
alike, policy agendas sometimes compete. In relation to asset recovery,
the concerned portfolios are primarily justice, foreign affairs, official
development assistance (ODA) and foreign trade. From a foreign affairs
perspective, considerations (such as the ones discussed in section 2.e
above) influencing the assessment of an asset recovery case are likely to
be different than when the requested countries justice people make the
same assessment, from a purely legal perspective. Similarly, people in
charge of the foreign trade dossier might view the strict enforcement of
foreign bribery legislation, which has a considerable impact on
preventing the exodus of stolen funds from developing countries, as
potentially hindering foreign trade. The BAE case in the United Kingdom
is a case in example for this, while this view is clearly difficult to argue
from an ODA perspective.
Developed, requested countries are therefore hard pressed to bring
in line their different portfolios that relate directly or indirectly to the
effective international recovery of stolen assets, with a view to coherently
supporting this important international effort.
b) Efficiency and proportionality
As has been shown earlier, proceedings in asset recovery cases can
be extremely time-intensive due to their complexity and the fact that
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oftentimes, many different jurisdictions are involved. As a result,
sometimes a case can evolve over years. That, of course, results in
tremendous costs in both requested and requesting states. When asset
recovery proceedings taking five to ten years or more, this raises
questions of whether the effort and the expenditure is actually worth the
effort especially in cases where smaller sums are concerned. It is clear that
from a viewpoint of seeking political and social stability, and for purely
legal considerations and considerations of justice, such arguments do not
hold up. However, when requesting states suffer from lack of resources it
is a point to be considered.
c) Monitoring: Neo-colonial or Indispensable?
Once a court order stands in the requested as well as in the
requesting country, the final step of effectively repatriating the concerned
assets has to be effectuated. As has been described in this paper, in some
cases there might be grounds for suspicion that the monies that will flow
back to the countries where they legally belong could be channelled away
illicitly again upon their return. As a result and also because of the
development policy agendas many requested countries follow, the
monitoring of the repatriation and the ultimate use of the repatriated
assets is a key concern to many stakeholders.
It is clear that the requesting country which had its assets legally
repatriated has the full sovereignty over decisions pertaining to the use of
such assets. A monitoring executed by the requested, repatriating country
is thus politically neither feasible nor sensible. At the same time, having
studied cases of asset repatriation monitoring the World Bank comes to
the conclusion that countries “that had embraced a policy of openness
and transparency in the design of arrangements for the management of
retuned assets have benefitted from this approach.”9
Especially involving stakeholders of non-governmental institutions
like civil society organisations (CSOs) might convey to the public that the
assets are used in a transparent manner. Another argument in favour of
monitoring through CSOs is that these organisations, anchored locally in
9
World Bank, Stolen Asset Recovery: Management of Returned Assets, 2009, p. xi.
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the requesting country, have a good understanding of where funds are
most needed and the capacity or network to monitor whether the funds
are used as originally planned.
One such example is the case of the Abacha monies that were
returned from Switzerland. At the end of lengthy negotiations, the
Nigerian government agreed to a collaborative monitoring mechanism
involving Swiss and Nigerian NGOs. The case example of Nigeria
concluded with mixed results, with the principal criticism of monitoring
mechanisms being that of accountability and legitimacy of those
institutions monitoring the repatriation and use of funds. Nonetheless the
principal idea still deserves adequate consideration, though there is a
need for devising a more comprehensive, accountable and legitimate
mechanism.
III. CONCLUSIONS
The discussion in this paper has shown that recovering stolen assets
and repatriating them to their rightful owners is not an easy undertaking.
Obstacles are manifold and the challenge is that those obstacles do not
only occur on a purely technical level, but also on the more sensitive
socio-economic and political levels. They even have an impact on
development assistance policies. However, cases like the one of Duvalier
show that successful recovery can be possible, even if many hurdles have
to be overcome first and both requested and requesting country have to
be tenacious. Some additional visions of possible ways forward might be
appropriate to be considered in more detail.
As has been mentioned in the treatise on repatriation and
monitoring, the involvement of civil society organisations, or more
generally non-state actors (NSAs), can assist in overcoming some of the
aforementioned hurdles. The potential of such actors, especially when it
comes to ensuring more transparency and accountability in the whole
asset recovery process, is considerable. Also, NSAs often have a
considerable amount of expertise. NGOs like French-based Sherpa have
shown the influence civil society actors can have on legal questions
pertaining to asset recovery. Sherpa and Transparency International
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France managed to secure a court ruling in France that henceforward,
petitions of civil parties, notably NGOs with a clear mandate in anticorruption and/or asset recovery, can be admitted before criminal courts.
As a consequence, NGOs in France can now open a case on behalf of the
victim state which Sherpa and TI did in relation to assets allegedly stolen
from DRC Congo, Gabon and Guinea.
Another new way forward to overcome some of the practical
hurdles discussed above is the training of so called “Asset Recovery
Champions”. The key purpose of this activity is to render asset recovery
capacity building more sustainable. So far, laudable efforts have been
made to train law enforcement officials in essential investigation and
asset recovery. As has been shown in the chapter above on capacities, the
availability of such basic skills is indispensable for the success of asset
recovery cases. However, it is important that the knowledge obtained by
few in a handful of trainings does not get lost as a result of the frequent
staff rotation in concerned agencies, and is spread beyond those
immediately trained in donor funded trainings. As a consequence, and
very much supported by ICAR’s train-the-trainer programmes, it is
essential that trainings specifically target selected “champions” who will
take it upon themselves to spread and institutionalise knowledge gained.
Finally, another recent development in the international policy
debate around asset recovery revolves around the concept of using
confiscated criminal assets also for social purposes.10 So far, in most
countries, assets that have been confiscated will, after a Court has
rendered final judgment, incorporate those assets in the general state
budget. Certain countries have taken rather innovative approaches,
having laws and regulations in place that offer the possibility to use
confiscated criminal assets for social purposes. Italy would be such a case,
where parts of criminal monies that have been confiscated are used for
social projects. Assessing the value added of such a concept in the
international asset recovery processes could help overcome some of the
10
European Parliament. 2012. The need for new EU legislation allowing the assets
confiscated from criminal organisations tob e used for civil society and in particular for
social purposes. Brussels: EU Parliament Committee on Civil Liberties, Justice and Home
Affairs. http://www.ipolnet.ep.parl.union.eu/ipolnet/cms
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political and developmental considerations regarding the ultimate
destination and use of repatriated assets.
Resuming, more success in asset recovery cases will gradually come
over the years. However, this will not happen without committed actors
from all sides: requesting countries, requested countries, politicians as
well as NSAs and the banking sector have to play together for asset
recovery to become more effective. As a result there still is a need for
more awareness rising and capacity building measures, for more policy
coherence and self-criticism by all concerned stakeholders, and especially
for more concerted actions and for the continuous reflection about new,
innovative approaches.
“ That old law about 'an eye for an eye' leaves everybody blind.
The time is always right to do the right thing. ”
- Martin Luther King, Jr. -
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THE ROLE OF GATEKEEPERS IN OBSCURING THE
LOOTED: PRACTICAL CHALLENGES
Abstrak
Gatekeeper dapat berperan sebagai pelindung pencuri aset-aset negara, tetapi
juga dapat menjadi hambatan baru bagi proses pengembalian aset yang dilakukan
oleh aparat penegak hukum. Keunggulan mereka adalah tidak saja terbiasa
dengan hukum dan birokrasi yang terkait dengan skema, tapi juga mempunyai
jaringan yang luas dengan orang dan institusi yang berpengaruh dan berkuasa.
Kegiatan mereka didukung dengan teknologi informasi dan komunikasi yang
melewati batas-batas yurisdiksi negara dan bersifat aktual. Oleh karena itu,
pencucian uang menjadi semakin canggih dan professional hingga tidak tampak
illegal. Sedangkan aparat penegak hukum terhambat oleh persoalan yurisdiksi
dalam upaya pengembalian aset dan harus memberikan bukti kuat bahwa aset
dimaksud merupakan hasil tindakan kriminal. Gatekeeper dapat berperan
sebagai pengawas yang membantu para penegak hukum atau sebaliknya
mengutamakan kepentingan klien. Dalam mengemban tugas yang seharusnya
menjadi perpanjangan aparat penegak hukum, perlu adanya pengembangan
integritas para gatekeeper dengan berbagai program dan peraturan.
Kata kunci: gatekeepers, money laundering, Guernsey, jurisdiction,
networking
The Gatekeepers: Whose gate do they keep?
It was in 2002, when the Financial Intelligence Service in Guernsey
announced that the money owned by Tommy Soeharto, located in BNP
Paribas Guernsey, was suspected as ill-gotten money. It was found out
later in 2005 that US$10 million was successfully transmitted to Tommy’s
associates’ accounts with the help from his lawyer, via government’s
accounts.
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The story of professionals involved in money laundering scheme is
well known for decades. Their involvements are no longer a
complimentary part in the scheme but a necessity. With all the money
involved and the need to conceal the proceeds of crime, the involvement
of professionals becomes inevitable. A more precise role of gatekeepers
can be found in another cleptocrat story of Marcos, in which the
involvement of gatekeepers is vital in ensuring that the fruits of Marcos’
crime were safely transferred to overseas accounts.
In Marcos’ case, the professional in the field was a KPMG employee
named Marie-Gabrielle Koller. It happened on 23 March 1986, precisely a
day before all the banks in Switzerland were ordered to seize Marcos’
assets, when the KPMG moved US$400 million from Credit Suisse Zurich
to a trust investment in Liechtenstein called Limag Management und
Verwarltungs AG.1 It is obvious that the KPMG employee presented
more than an ordinary service but also the reassurance that her client’s
satisfaction would always be a primary concern in any circumstance.
Ensuring client’s satisfaction seems to have become the main goal of
gatekeepers.
By definition, gatekeepers are those professionals who are not only
accustomed with the law and bureaucracy involved in the scheme, but
also well connected with powerful and influential people or institutions.
The two aforementioned examples have shown how the professionals can
act in a governmental sphere as well as in a private one. Thus, the
professionals’ involvement has created a serious threat for the law
enforcement agencies to detect and prove any ill-gotten money of public
officials or other criminals. Having someone who knows how the systems
work and who can provide the assurance of secured protection for the
perpetrators’ assets has made the service from the professionals a onestop service for all criminals.
The involvement of gatekeepers can occur in every stage of money
laundering scheme, that is the placement, layering and integration stage.
Having the professionals since the early stage is done to ensure that the
1
Lucy Komisar’s Marcos’ Missing Millions, in These Times,
<http://www.inthesetimes.com/article/1566/marcos_missing_millions/>, on 10 September
2009.
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ill-gotten assets are untraceable and yet can still be accessed for the
perpetrators’ advantage. The acknowledgement of the excellent
performance of the gatekeepers indicates that the law enforcement
officers in the field are dealing with a new barrier that hampers the
investigation and the asset recovery process.
The Challenges: What they are and where they come from
The existence of gatekeepers is also enhanced by the advanced
technology and the globalization that transforms the world until it
becomes small enough to be held in your hands. The technology has
created a system that enables someone to transfer money within seconds
from one continent to another. In the era of globalization, the
international trade is no longer a playing field that belongs to certain
people, but rather everybody’s playing field, as reflected in the stocks
market. The enhanced technology also enables gatekeepers to provide any
false identity or hides any personal information that can link the assets to
their owners. The ability to camouflage the real owner or controller of the
assets has been proven to result in success stories, successfully assisting
some of the cleptocrats to hide their assets and live in luxury during their
terms and retirements. The advanced technology is also removing all the
boundaries and jurisdictions among countries. As mentioned earlier, it
will take only seconds to transfer money from one continent to another
continent. Similarly, it will take only less than 10 minutes to create a
virtual office with bogus transactions in several countries.
The fact that some of the gatekeepers are the fellows of law
enforcement officers or people with a strong experience background in
the field has made the gatekeepers to be in the same pace or even further
ahead from the law enforcement officers and everyone in the system of
detections. In the exact practical level, the challenges for the law
enforcement agencies in dealing with the gatekeepers are:
The Jurisdictions
Each country has its own jurisdictions to prevent the violation of
sovereignty. The jurisdictions are also valid for the law enforcement
agencies dealing with the crime. The jurisdictions are there to ensure there
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is no abuse of power or the opportunity of being abusive. With the
existence of those jurisdictions, there are some limitations and boundaries
in dealing with transnational crimes. In order to overcome those
challenges, some countries establish Memorandums of Understanding
and the Mutual Legal Assistance Treaties. On the highest ground, some
international organizations make some conventions, creating an
obligation for the ratifying state party to cooperate and alleviate the
boundaries among countries.
Despite of all those efforts, there is an undeniable fact that there is
no limitation or jurisdiction in the criminal world. They are protected by
mutual understanding and mutual interest, in which money speaks a
universal language. The looted assets kept in some tax haven countries
and some countries with good bank secrecy have created a new source of
income for the countries able to provide those facilities. Since many
countries have seen the looted assets as a potential source of income,
many countries are developing ways to create easy access for the
cleptocrats to deposit their assets. The gatekeepers are aware of these
circumstances and are taking advantages of them.
With that background, in which the red carpet is thrown to
welcome the looted assets, what remain are the hands to deliver the assets
to walk on the red carpet. The delivery person is the gatekeeper. The role
of lawyers who can list their clients under on-shelf companies or shell
companies will results in hidden information as to whom the assets
belong. The role of accountants or private banking officers will create
many untraceable transactions and bogus scheme in order to make
everything appear as legitimate transactions. The role of lawyers will also
hamper every law enforcement official attempting to trace the looted
assets or to repatriate the assets. For example, the lawyers will throw
many legal issues and sues to the law enforcement agencies. This may
seem only administrative attempt to hamper the process, yet still works as
effective as it should be. Each of legal matters must be answered and the
law enforcement agencies will be trapped in documents war.
It will be more complicated if the scheme occurs on a transnational
basis. Each jurisdiction has its own legal system that may be different
with that of the other country. There is a different requirement to be
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fulfilled in every jurisdiction and each jurisdiction will likely present
heavy bureaucracy and many legal procedures to be followed.
Ironically, no jurisdiction has been applied between perpetrators
and their gatekeepers in looting the assets across countries and
continents. Meanwhile, the law enforcement agencies must meet with
jurisdictions as one of the boundaries needed to be tackled. In the high
technology era and with the spirit of globalization, each of us is becoming
a citizen of the world (and no longer attached to one country), while the
existence of jurisdiction and its bureaucracy has created a convoluted
bureaucracy for law enforcement agencies across the globe.
The Systems
Defined as “a set of things that are connected or that work together”,
the systems are intended to organize things in accordance with what they
should be. In terms of law enforcement, the systems discussed here are
the criminal justice systems applied to enforce the law and also the
systems that refer to the laws that regulate the gatekeepers. Therefore, the
discussion will be divided into two approaches as follows:
The Internal
The internal systems refer to the applied law that regulates the
criminal justice system and its pillars, which consist of prosecutor and
investigator. In a specific criminal scope on corruption, the investigators
are coming from three agencies, namely the Attorney General Office, the
Indonesian National Police, and the Indonesian Corruption Eradication
Commission. The system applied for those three agencies is based on Law
Number 8 Year 1981 on the Codification of the Criminal Procedure Law.
As for the Indonesian Corruption Eradication Commission (CEC), it is
regulated under Law Number 30 Year 2002, which specifically explains
some of its differences with the other law enforcement agencies. Within
the CEC Law, it is regulated also that in order to have a case investigated,
there is a need to have an initial evidence that consists of at least two
evidences as mentioned under the Law Number 8 Year 1981. This is a
compulsory approach because the CEC does not have the jurisdiction to
halt the case once the case has been promoted to the investigation stage. It
•
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is a must ensuring that every case already promoted to the investigation
must go on until the prosecution. Moreover, the initial evidence that has
been used for promoting the case must still have the relevance until the
case is tried. The criminal justice system also regulates that asset
confiscation can only be done for assets gained from illicit conducts of the
convicted parties. In relevance to that, it is compulsory providing the
nexus between the proceeds of crime and the predicate crimes that
produced them. The investigator and the prosecutor must be able to bring
that nexus to be tried and proved beyond reasonable doubt; that the
convicted parties have enriched themselves from the criminal offence they
are guilty of.
In order to establish the nexus, there are standards of proof, in
accordance with the stage of process in identifying, locating and
repatriating the assets to the states. The standards of proof are as follows:
o Reasonable grounds for suspect or evidence are necessary to establish
the fact which becomes the ground for conducting the tracing
measures;
o Probable cause or reasonable grounds are required to produce the
freezing order as well as the search and seizure order. In this stage,
the procedure can only be taken under the investigation process as
regulated by the law that any attempt to enforce the law into
someone's private zone is only allowed under the investigation
process for all law enforcement agencies;
o Balance of probabilities or predominating evidence becomes the
reason for having the confiscation order. The confiscation order itself
can also result from the conviction in which someone has been proven
guilty beyond a reasonable doubt. As mentioned earlier, all these
stages must be met in order to confiscate and repatriate the stolen
assets from the criminal charged for the offense.
However, those systems unfortunately create a labyrinth. On one
hand, it makes the task of the law enforcement agencies harder because
not only they need to prove the case but they also must be able to perform
beyond reasonable doubt the nexus of the proceeds of crime and the
crime itself. On the other hand, the labyrinth system creates advantages
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for gatekeepers in providing service for their clients. The gatekeepers as
mentioned earlier are those familiar with the system and sometimes used
by or work for the government. They know the law and they know how
to make a safe sanctuary from law enforcement detection and even if the
looted assets are detected, the gatekeepers will make them untouchable.
The limitation on the law enforcement to act rapidly and avoid the
assets to be moved to other places sometimes has to do with the
documents or the necessity to establish early evidence to support the
allegation. In other law enforcement agencies, the request to seize the
accounts must be reported to the Governor of Central Bank and will be
executed after the letter is approved by the Governor. This loop hole has
created an opportunity for the gatekeepers to receive insider information
and thus enabled them to rescue their clients’ assets.
The systems also create some grey areas in the field. The grey areas
consist of some matters that do not say something is forbidden nor have
any clear rulings. The dispute and the open interpretation along with
various judgments on the matters open wider gate to the gatekeepers. As
the people who have experience with the system, the cleptocrats use them
as their financial advisors or investment managers. The main goal is how
to avoid the system without violating the system itself. It is how the
gatekeepers extort the grey areas for their clients’ benefits. The grey areas
unfortunately are created by the law enforcement inflexible regulations,
insensitive to detect the latest trend in economic crime.
The External
The external refers to all circumstances that support the gatekeepers
in performing their duties. The circumstances cover the regulation that
makes the profession of gatekeepers flourish and the networking power
that contributes in the gatekeepers’ efforts in producing excellent way to
loot assets.
The regulations for gatekeepers are meant to make sure that the
profession has integrity and clear tasks. It must not be breached as it will
injure the credibility of the profession itself. Yet, during the years the
regulations have been transformed into a shield for the gatekeepers in
looting the assets or hiding their clients’ location. Under the privilege to
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veil their clients’ interests, the gatekeepers have the right not to reveal
what they really know about their clients. The regulations are in dual
functions related to the gatekeepers’ profession. It is indeed a tool to
control and legitimate the profession. In some way, the regulations have
created a way to protect the profession from being accused of assisting a
crime.
The other external factor is the power of networking within the
profession. Peer relation is very strong among gatekeepers. This factor
may be supported by the fact that the gatekeepers are indeed a small gang
but spread across the globe. There are not many people who have access
to all financial institutions and can perform what may appear as legal
activities. However, it can be assumed that there must be one in each
country. The gatekeepers are exclusive but flourish everywhere. The
gatekeepers must have a great network across jurisdictions in order to
hide from law enforcement detection and to transmit their clients’ interest
to any place in the world. The networking also provides them with the
latest information from a certain jurisdiction, which will whether gives
benefit or gives adverse situation for the clients.
In contrast with all those aforementioned two factors, the law
enforcement agencies are not provided with a strong instrument to
interfere with the privilege existing between the gatekeepers and their
clients, although the law enforcement agencies have the obligation to
obtain information from as many sources as possible.
Furthermore, the external challenge, the networking, also creates
more issues for the law enforcement agencies. As mentioned earlier, the
law enforcement agencies are limited by jurisdictions among countries.
Although there is also a networking cooperation between law
enforcement agencies, the cooperation still cannot flex the stiff borderlines
of enforcing one country’s law in another country. This is in contrast with
the networking gatekeepers have, which are made for flexing all the limits
and making it limitless to loot the assets or to hide someone in other
countries. The networking of the gatekeepers has also been supported by
the era of technology, in which everything is being connected with the
internet global network. The real time transmission can send information
to the other party immediately after the information has been sent. By
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that, the challenge for the law enforcement agencies are becoming
tangible and the agencies are always lagging behind compared with the
perpetrators.
The Gatekeepers: Are they a threat or a savior?
The gatekeepers basically are meant to be the extension of the law
enforcement agencies. They are meant to make sure people that enter the
system, i.e. the financial institution system, are people with a clear
background. The assurance that the money that goes into system is nontainted is a priority concern. Therefore, the presence of gatekeepers
becomes critical. Similar with the lawyers who are supposed to make sure
their clients are being protected from cunning operations and to give a
legal assurance that the transactions are legitimate in order to protect the
third party’s interests in public transactions, the gatekeepers are to create
security and perform as a watchdog to extend the supervision of the law
enforcement agencies. Suspicious transactions are hoped to be reported
by the gatekeepers to the authorities, as they are the ones meant to be
alert of this since the first suspicious or bogus transaction occurs. They are
expected to implement the policy of knowing your customer, which
relates to the clients’ background check. However, in order to achieve the
ideal role of gatekeepers, gatekeepers must have self-conscience in
performing their duties.
Without having any self-conscience, the role of the gatekeepers is
transformed into a threat in the attempt of implementing the law on
perpetrators. They become the sidekicks of the criminals instead of
partners of the law enforcement agencies. The problem is when an
enormous capital is involved, the line between integrity and clients’
interest is becoming thinner. The gatekeepers see that money speaks a
more universal language compared with loyalty. They tend to abandon
the first ideal role of the gatekeepers’, that is to give assistance to the law
enforcement agencies and make sure that their profession is not being
used by criminals. The value of loyalty is traded with the value offered by
clients and customers. It is about ensuring the clients’ interest not to be
harmed by everyone, including the law enforcement agencies.
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The dual function of the gatekeepers is worsened by the fact that the
control mechanism for this profession is not fully implemented. The lack
of integrity within the individuals involved results in bad policy for
internal control. The rational reason behind that is that the gatekeepers
will avoid more chains in the profession, as long as they can keep
fulfilling their clients’ demand. What makes the gatekeepers infinite
during the years is the ability to promote the trust of the clients by giving
full confidentiality for every transaction or service performed. The
reputation of gatekeepers must be maintained and ensuring the same
services are still available is also compulsory. The reason why internal
control seems weak is purely because they prefer to comfort their clients
instead of to be in favor with the law enforcement agencies.
The Conclusions
It cannot be denied that gatekeepers play an important role in
financial transactions, especially in securing the systems, although, in
terms of practical level, the role of gatekeepers has transformed into a
kind of assistance in looting assets into a secured financial system. The
gatekeepers have sided to the party who brings more benefits and profits
both the individual in the field or the institutions.
Unfortunately, law enforcement agencies seem to have failed to stop
or prevent the gatekeepers from bringing the illicit assets into the systems
and from having they emerge as legitimate assets of the owners. The law
enforcement agencies are not supported by the technology nor any
sufficient instrument that enables them to be in the same pace with the
gatekeepers or the criminals. The instrument for the law enforcement
agencies cannot break through multi-jurisdictions for transnational
transactions. On the other hand, the instruments of the gatekeepers, i.e.
networking and secured mutual cooperation, always find no limit and it’s
cross-jurisdictional.
The challenges are tangible and the solution is becoming salient to
be discovered. The cooperation between the law enforcement agencies
needs to be in the same level like that of the criminals and the
gatekeepers. Also, there should be a development in terms of integrity
level for the people who work as gatekeepers. It will take more
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comprehensive plans and programs in setting the priority related to the
gatekeeper’s profession; whether it will guard the looting assets or guard
the state’s interest.
“ Act that your principle of action might safely be made a law for the
whole world.
”
- Immanuel Kant 116
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RESENSI BUKU
Judul
: Asset Recovery Handbook – A Guide for
Practitioners
Penulis buku
: Jean-Pierre Brun, Larrisa Gray, Clive Scott, Kevin
M. Stephenson
Penerbit
: World Bank, UNODC
Bahasa
: English
Jumlah halaman : 252
Pembuat resensi : Ni Putu Anggraeni
The theft of public assests
through bribery, misappropriation of
funds, and other corrupt practices, is
one of the immense development
problem suffered by developing
countries. The amount of money
stolen
from
developing
and
transition jurisdictions and hidden in
the “safe haven” of foreign
jurisdictions
each
year
is
approximately $20 to $40 billions, a
figure equivalent to 20-40 percent
flows of official development
assisstance.
Aside from the financial lost
suffered by the developing countries,
the societal cost of corruption is even
bigger. In fact, it far exceed the value
of assets stolen by public leaders. Corruption weakens the confidence in
public institutions, damages the private investment climate, and ruins
delivery mechanisms for such poverty alleviation programs such as
public health and education.
Recognizing the serious problem of corruption and the need for
improved mechanisms to combat its devastating impact and facilitate the
recovery of corruption proceeds, the international community introduced
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a new framework in the United Nations Convention against Corruption
(UNCAC). Chapter V of the convention provides this framework for the
return of stolen assets, requiring states parties to take measures to
restrain, seize, confiscate, and return the proceeds of corruption.
Even with this framework, the practice of recovering stolen assets
remains complex. It involves coordination and collaboration with
domestic agencies and ministries in multiple jurisdictions with different
legal systems and procedures. It requires special investigative techniques
and skills to “follow the money” beyond national borders and the ability
to act quickly to avoid dissipation of the assets. To ensure effectiveness,
the competent authority must have the capacity to launch and conduct
legal proceedings in domestic and foreign courts or to provide the
authorities in another jurisdiction with evidence or intelligence for
investigations. All legal options must be considered, thus the process may
be overwhelming for even the most experienced practitioners. It is
exceptionally difficult for those working in the context of failed states,
widespread corruption, or limited resources.
The complexity of the process highlights the need for a practical
tool to help practitioners navigate the process. With this in mind, the
Stolen Asset Recovery Initiative, a joint initiative of the United Nations
Office of Drugs and Crime and the World Bank focused on encouraging
and facilitating more systematic and timely return of stolen assets, has
developed this Asset Recovery Handbook: A Guide for Practitioners.
This book is designed as a manual which guides practitioners as
they grapple with the strategic, organizational, investigative, and legal
challenges of recovering assets that have been stolen by corrupt leaders
and hidden abroad. It provides common approaches to recovering stolen
assets located in foreign jurisdictions, identifies the challenges that
practitioners are likely to encounter, and introduces good practices. By
consolidating into a single framework the information dispersed across
various professional backgrounds, this book will enhance the
effectiveness of practitioners working in a team environment.
Given diverse audiences and legal systems, it is important that
readers keep in mind that a practice or strategy that has worked in one
jurisdiction may not work in another. Likewise, an investigative
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technique that is permitted in one jurisdiction may not be permitted—or
may have different procedural requirements—in another. In addition,
jurisdictions may use different terminology to describe the same legal
concept or procedure. Different jurisdictions may also assign different
roles and responsibilities to those people who are involved in asset
recovery. In some jurisdictions, investigations are conducted by an
investigating magistrate; in others, by law enforcement authorities or
prosecutors.
This book attempts to point out these differences and highlights
how different concepts or practices may offer similar solutions to the
same challenges. However, this book is not designed to be a detailed
compendium of law and practices. Each practitioner therefore should
read this book in the context of his or her specific jurisdiction’s legal
system, law enforcement structures, resources, legislation, and
procedures—without being restrained by the terminology or the concepts
used to illustrate the challenges and tools for successful recovery of assets.
The practitioner should also consider the context of the legal system, law
enforcement structures, resources, legislation, and procedures of the
specific jurisdiction where the asset recovery procedures will be sought.
The primary purpose of this book is to facilitate asset recovery in
the context of grand corruption, particularly as outlined in chapter V of
UNCAC. Nonetheless, asset confiscation and recovery can and should be
applied to a wider range of offenses—particularly, the asset confiscation
provisions set out in the United Nations Convention against Narcotic
Drugs and Psychotropic Substances (Vienna) and the United Nations
Convention against Transnational Organized Crime.
This book is organized into nine chapters, a glossary, and 10
appendixes of additional resources. Chapter 1 provides a general
overview of the asset recovery process and legal avenues for recovery,
along with practical case examples. Chapter 2 presents a host of strategic
considerations for developing and managing an asset recovery case,
including gathering initial sources of facts and information, assembling a
team, and establishing a relationship with foreign counterparts for
international cooperation. Chapter 3 introduces the techniques that
practitioners may use to trace assets and analyze financial data, as well as
119
JURNAL OPINIO JURIS
to secure reliable and admissible evidence for asset confiscation cases. The
provisional measures and planning necessary to secure the assets prior to
confiscation are discussed in chapter 4; and chapter 5 introduces some of
the management issues that practitioners will need to consider during this
phase. Confiscation systems are the focus of chapter 6, including a review
of the different systems and how they operate and the procedural
enhancements that are available in some jurisdictions. On the issue of
international cooperation, chapter 7 reviews the various methods
available, including informal assistance and mutual legal assistance
requests; and guides practitioners through the entire process. While
chapters 8 and 9 discuss two additional avenues for asset recovery—
respectively, civil proceedings and domestic confiscation proceedings
undertaken in foreign jurisdictions.
The glossary defines many of the specialized terms used within
the book. Because jurisdictions often use different terminology to describe
the same legal concept or procedure, the glossary provides examples of
alternative terms that may be used. The appendixes contain additional
reference tools and practical resources to assist practitioners. Appendix A
provides an outline of offenses where criminal prosecution is concerned.
Appendix B presents a detailed list and descriptions of commonly used
corporate vehicle terms. For those reviewing suspicious transaction
reports, appendix C provides a sample financial intelligence unit report.
Appendix D offers a checklist of some additional considerations for
planning the execution of a search and seizure warrant. Appendixes E
and G, respectively, provide a sample production order for financial
institutions and a sample financial profile form. Appendix F outlines the
serial and cover payment methods used by correspondent banks in
relation to electronic fund transfers, and it discusses the new cover
payment standards that became effective in November 2009. Appendix H
offers discussion points that practitioners may use to begin
communications with their foreign counterparts. With respect to mutual
legal assistance requests, Appendix I provides an outline for a letter of
request, with key drafting and execution tips. Finally, Appendix J
provides a broad range of international and country-specific Web site
resources.
120
JURNAL OPINIO JURIS
ISTILAH HUKUM
Aset-Aset
• Segala sesuatu yang dimiliki yang memiliki nilai keuangan;berbagai
keuntungan/bunga yang terdapat dalam barang tidak bergerak atau
barang milik pribadi yang dapat digunakan untuk pembayaran
hutang.
• Pada umumnya, berbagai barang yang memiliki nilai, baik nilai
keuangan atau nilai sentimental. Sebagaimana yang digunakan oleh
IRS (Internal Revenue Service), istilah ini bermakna berbagai barang
dengan suatu nilai dan digunakan sekurang-kurangnya selama
setahun dalam suatu perdagangan atau bisnis—contohnya
perlengkapan (mesin), bangunan, kendaraan, peralatan, hak paten,
dan uang yang ditahan atau dibebankan pada suatu bisnis (piutang).
• Pada umumnya, beberapa bagian dari kekayaaan (harta benda) yang
memiliki nilai keuangan, termasuk barang-barang yang hanya
memiliki nilai sentimental (khususnya dalam area pemakaman). Aset
ditunjukkan dalam neraca keuangan perusahaan dan salinan surat
wasiat. Terdapat
aset bergerak (yang meliputi rekening
piutang/saldo), aset tetap/aktiva tetap (peralatan dasar dan
bangunan) dan aset-aset tidak berwujud
seperti itikad baik
perusahaan dan hak-hak untuk memasarkan suatu produk.
• Berbagai jenis barang, meliputi barang tidak bergerak dan barang
milik pribadi, berwujud dan tidak berwujud.
• Dalam hukum keluarga, khususnya dalam konteks perceraian, asetaset perkawinan adalah sumber ekonomi yang diperoleh selama
perkawinan; terhitung sejak tanggal upacara perkawinan hingga
tanggal tertentu atau hingga pisah ranjang. Aset-aset perkawinan
kemudian akan dikurangi dengan hutang perkawinan dalam
pembagian harta dan pemberian tunjangan pasangan. Dalam hal
pemberian tunjangan anak, aset dari pihak yang bukan merupakan
orang tua
asuh
dihitung/dikalkulasikan untuk menentukan
tunjangan anak yang akan dibayar.
121
JURNAL OPINIO JURIS
Pengembalian (Recovery)
Pemberian hak atas putusan pengadilan. Dengan demikian seseorang
yang memenangkan gugatan
untuk mendapatkan putusan
“pengembalian” yang mana hak orang tersebut dianggap hilang oleh
pengadilan, mendapatkan hak pengembalian meskipun pengembalian
tersebut tentunya tidak kembali seluruhnya atau normal. Hal tersebut
juga berlaku untuk besarnya ganti rugi demikian pula biaya yang
ditagih.
Pengawasan Perlindungan Aset
Pengawasan perlindungan aset adalah suatu pengawasan diri dari
pemborosan. Hal ini berarti suatu pengawasan yang dibuat oleh
seseorang terhadap dirinya yang terlindungi dari para kreditur.
Pengawasan perlindungan aset biasanya ditemukan diluar wilayah
Amerika Serikat. Bentuk-bentuk dasar dari pengawasan perlindungan
aset luar negeri adalah:
1) Penggunaan dari pelindung pengawasan, yaitu suatu jasa pelayanan
yang mengawasi pengawas/wali;
2) Suatu ketentuan mengenai masa darurat, yang mengatur bahwa
pengawas/atau wali harus mengabaikan perintah apapun dari
pelindung pengawas dalam masa-masa darurat. Masa sulit biasanya
adalah beberapa putusan pengadilan untuk mengembalikan aset yang
dipercayakan kepada Amerika Serikat karena Kreditur telah
memperoleh suatu penilaian terhadap ahli waris (penerima) dan
berusaha untuk melaksanakan penilaian itu terhadap property.
3) Suatu ketentuan penerbangan yang mengizinkan pengawas/wali
untuk mengembalikan aset yang dipercayakan dari suatu yurisdiksi
ke yurisdiksi lainnya dalam hal terdapat kemungkinan yang
signifikan bahwa seorang kreditur dapat menjangkau aset yang
dipercayakan tersebut. Pengawasan perlindungan aset pada
umumnya tidak terjadi di Amerika Serikat.
122
JURNAL OPINIO JURIS
Barang Modal
Berbagai Jenis barang yang dimiliki oleh suatu perusahaan yang
digunakan lebih dari satu tahun seperti komputer atau truk.
Aset Tersembunyi
Suatu barang bernilai yang tidak tercantum dalam laporan-laporan dari
suatu perusahaan, yang seringkali ditiadakan untuk tujuan yang tidak
wajar, seperti menghindari pajak atau menyembunyikannya dari
pengawas kepailitan.
Aktiva Tetap (Fixed Asset)
Barang berwujud
jangka panjang
digunakan dalam operasional
perusahaan yang tidak dapat segera dikonversi menjadi uang tunai atau
dimanfaatkan untuk tujuan-tujuan normal perusahaan. Contohnya
meliputi mesin-mesin, bangunan, peralatan dan perlengkapan. Juga
berkaitan dengan barang modal.
Aset Cair (Liquid Asset)
Barang milik perusahaan atau perorangan yang dapat dengan segera dan
dengan mudah dikonversi menjadi uang tunai, seperti saham, rekening
bank dan piutang
Aset yang dapat disusutkan (Depreciable Asset)
Barang dengan penggunaan sekurang-kurangnya satu tahun yang secara
berkesinambungan kehilangan nilainya dari waktu ke waktu. Suatu
perusahaan mengurangi harga dari harga yang dapat disusutkan selama
periode waktu tertentu.
Ajudikasi
Peristiwa hukum ketika tersangka sudah berubah status menjadi
terdakwa; pada proses ini mempertunjukkan bukti yang lengkap kepada
pengadilan disertai dua alat bukti ditambah keyakinan
Equality before the law
Perlakuan yang sama atas diri setiap orang di muka hukum dengan tidak
mengadakan pembedaan perlakuan
123
JURNAL OPINIO JURIS
Presumption of innocence
Setiap orang yang disangka, ditangkap, ditahan, dituntut dan/atau
dihadapkan di muka sidang pengadilan wajib dianggap tidak bersalah
sampai adanya putusan pengadilan yang menyatakan kesalahannya dan
memperoleh kekuatan hukum tetap.
Domicile
Tempat kedudukan, tempat tinggal yang sewajarnya atau yang dipilih
sebagai keputusan yang diperintahkan untuk beberapa perbuatan
keperdataan dan hukum publik
Strafbaarfeit delik
Peristiwa pidana; peristiwa yang diancam hukuman, yang dapat
mengakibatkan tuntutan hukuman; khusus dulu hukum pidana umum,
berdasarkan ancaman hukuman dulu ketentuan Undang-Undang yang
ditetapkan sebelumnya: peristiwa pidana dulu hukum pidana umum
dibedakan menjadi kejahatan dan pelanggaran
The Foreign Court Theory (FCT)
Hakim suatu negara bertindak seolah-olah sebagai forum/pengadilan
asing untuk memutuskan suatu perkara sesuai dengan cara yang
digunakan forum/pengadilan asing
Ne Bis In Idem
Asas yang melarang seseorang untuk diadili dan dihukum untuk kedua
kalinya bagi kejahatan yang sama.
Actor sequitur forum rei
Pengadilan negeri di tempat tergugat tinggal (mempunyai alamat,
berdomisili) yang berwenang memeriksa gugatan atau tuntutan hak
Actor Rei Forum Sequitur
Penggugat harus menggugat tergugat di pengadilan di tempat tergugat
tinggal
124
JURNAL OPINIO JURIS
Asas droit de suite
Berdasarkan hak suatu kebendaan, seseorang yang berhak terhadap
benda itu, mempunyai kekuasaan/wewenang untuk mempertahankan
atau menggugat bendanya dari tangan siapapun juga atau dimanapun
benda itu berada.
Retroaktif atau berlaku surut
(Bahasa Latin: ex post facto yang berarti "dari sesuatu yang dilakukan
setelahnya"). Suatu hukum yang mengubah konsekuensi hukum
terhadap tindakan yang dilakukan atau status hukum fakta-fakta dan
hubungan yang ada sebelum suatu hukum diberlakukan atau
diundangkan. Dalam kaitannya dengan hukum kriminal, hukum
retroaktif dapat diterapkan pada suatu tindakan yang legal atau memiliki
hukuman yang lebih ringan sewaktu dilakukan. Penerapan hukum ini
dapat mengubah aturan bukti-bukti yang ditemukan untuk memperbesar
kemungkinan pemberian hukuman pada seorang terdakwa. Sebaliknya,
penerapan hukum jenis ini dapat pula mengurangi atau bahkan
membebaskan seorang terhukum.
Abus de pouvoir
Penyalahgunaan kekuasaan oleh instansi pemerintah
“ The best way to get a bad law repealed is to enforce it strictly ”
- Abraham Lincoln -
125
JURNAL OPINIO JURIS
TENTANG PENULIS
Amien Sunaryadi, Ak, MPA, CISA
Senior officer dan anggota tim Bank Dunia untuk Pemerintahan dan AntiKorupsi (Governance and Anti-Corruption/GAC). Amien adalah pimpinan
Komisi Pemberantasan Korupsi RI (2003—2007), mantan Kepala Sub
Direktorat Pengawasan Khusus Kelancaran Pembangunan pada Deputi
Bidang Pengawasan Khusus Badan Pengawasan Keuangan dan
Pembangunan (BPKP). Amien meraih gelar Akuntan (Ak) dari Sekolah
Tinggi Akuntansi Negara (1988) dan Master of Professional Accountancy
(MPA) dari Georgia State University, Atlanta (1993). Oktober 2000-Juni
2003, Amien menjabat sebagai manajer pada unit Dispute Analysis and
Investigations PT PricewaterhouseCoopers FAS; dan pada Juli 2003Desember 2003 jabatannya berubah menjadi Senior Manager pada unit dan
perusahaan yang sama. Di luar pekerjaannya di perusahaan tersebut,
ayah dari tiga orang anak ini menjabat sebagai Program Director Lembaga
Pengkajian (LPGG) (September 1999- Agustus 2004).
Anja Roth, BA., LL.M.
Lulusan Irish Center for Human Rights di Galway dan bergabung dengan
International Centre for Asset Recovery (ICAR) Basel Institute pada
September 2009. Dia memperoleh LLM Hukum Hak Asasi Manusia
Internasional (2008) dan gelar BA pada Studi Eropa dari Universitas
Maastricht di Belanda. Setelah lulus dari sekolah di Jerman pada tahun
2002, dia bekerja dan tinggal di Islandia, Belanda, Selandia Baru, Irlandia
dan Polandia. Sebagai anggota lama dari Amnesti Internasional, ia
bekerja di tim kampanye AI di Wellington pada 2006—2007. Setelah
menyelesaikan Master-nya, ia bekerja untuk Organization for Democratic
Institutions and Human Rights (OSCE/ODIHR) di Warsawa. Ia juga
bekerja sebagai peneliti dan Opperational Support Officer pada Center on
Asset Recovery dan tengah menyelesaikan PhD tentang non-diskriminasi
minoritas pada peraturan internasional dan nasional.
126
JURNAL OPINIO JURIS
Arinta Luthri Handini, SH., LL.M.
Memperoleh gelar SH di Fakultas Hukum UI (Angkatan 2001) dan LLM
on The Criminal Justice and Criminolgy dari the University of New South
Wales, Australia (2009). Sejak 2005, bergabung bekerja di Komisi
Pemberantasan Korupsi (KPK) RI sebagai investigator pada Direktorat
Penyelidikan (sebelumnya Direktorat Pengaduan. Pernah menjadi
pembicara pada Jesus College Cambridge University Symposium on
Economic Crime (2011); pembicara pada International Law Mooting
Society Universitas Indonesia Seminar on the Gatekeepers (2012); trainers
di JCLEC untuk corruption and money laundering (2010—2011); pembicara
pada 3rd Regional on Asset Forfeiture yang diselenggarakan oleh USDOJ
dan Aus AGO (2012); dan kontributor pada Modul Penanganan Tindak
Pidana Pencucian Uang dan Tindak Pidana Asal, PPATK (2012).
Dayu Nirma Amurwanti, SE.
Sejak Agustus 2007 hingga saat ini, Dayu adalah operations analyst dan
anggota tim Bank Dunia untuk Pemerintahan dan Anti-Korupsi
(Governance and Anti-Corruption/GAC). Sebelumnya, Dayu merupakan
Program Management Assistant di International Criminal Investigative
(2005—2007) dan Logistics Coordinator di ICMA (2005). Meraih sarjana
ekonomi pada Jurusan Manajemen, Fakultas Ekonomi Universitas
Indonesia (2003).
Harjo Winoto, SH.
Seorang pengacara yang menamatkan pendidikan SH di UI (2009) dan
kini tengah menempuh pendidikan pasca-sarjana di in LKY School of
Public Policy, NUS (Singapore). Pernah menjadi editor, penulis, dan
peneliti pada National Legal Reform Program (NLRP) (2011), spesialis
bahasa di Mahkamah Konstitusi RI (2007—2011), dan peneliti pada Pusat
Studi Hukum dan Kebijakan (2009—2010).
Giri Suprapdiono
Lahir di Jawa Timur dan menamatkan pendidikan di universitas
terkemuka di Indonesia dan Belanda. Kini ia menjabat sebagai
Koordinator Kerja Sama Internasional Komisi Pemberantasan Korupsi
(KPK) RI sejak pada awal pembentukan KPK. Sebagai Koordinator Kerja
127
JURNAL OPINIO JURIS
Sama Internasional, ia memiliki tanggung jawab dalam menangani
masalah internasional di bidang hubungan internasional dan bantuan
hukum internasional seperti investigasi gabungan, MLA, ekstradisi, dan
pengembalian aset curian. Ia terlibat dalam beberapa operasi
internasional yang kompleks dalam menangani penegakan anti-korupsi
dan memiliki tanggung jawab dalam menangani lebih dari 27 bantuan
hukum timbal balik (MLA).
Gretta Fenner Zinkernagel
Managing Director Basel Institute on Governance, di mana ia juga
menjabat sebagai Direktur International Centre for Asset Recovery
(ICAR) pada Basel Institute. Dia menjabat posisi sejak 2005 hingga 2008,
dan telah bergabung dengan Institut yang sama pada akhir. Ia dikenal
sebagai konsultan lepas pemerintah, donor, organisasi internasional dan
perusahaan multinasional di seluruh dunia dalam topik terkait tata kelola
pemerintahan dan anti-korupsi begitu juga topik perubahan organisasi
serta proses pengembangan dan desain kebijakan. Sebelum bergabung
dengan Institut Basel, Gretta bekerja di Organisasi untuk Kerja Sama
Ekonomi dan Pembangunan (OECD) di Paris sebagai manajer organisasi
untuk anti-korupsi program di wilayah Asia-Pasifik. Gretta Fenner
adalah seorang ilmuwan politik dengan pelatihan dan memegang gelar
sarjana dan gelar master dari Otto-Suhr-Institute di Berlin Free
University, Jerman, dan Institut Ilmu Politik Paris ("Sciences Po Paris"),
Perancis dan menyelesaikan MBA di Program Pascasarjana Bisnis, Curtin
University, Australia. Dia telah menerbitkan banyak tulisan dan menjadi
pembicara pada topik anti-korupsi dan pemerintahan di forum-forum
internasional.
Prof. Hikmahanto Juwana, SH., LL.M., Ph.D
Selain seorang Guru Besar Hukum Internasional, Hikmahanto juga
menjadi Dewan Pakar Hukum Departemen Kehakiman; Utusan Khusus
Presiden RI ke Swedia dalam Rangka Proses Hukum terhadap Hassan
Tiro (2003); Anggota Governing Council, Indonesian Chapter, ASEAN Law
Association; dan Anggota Dewan Kehormatan Badan Arbitrase Pasar
Modal. Meraih SH dari Universitas Indonesia (1987); LL.M dari Keio
128
JURNAL OPINIO JURIS
University, Jepang (1992); dan PhD dari the University of Nottingham,
UK (1997). Karya ilmiahnya tersebar di berbagai seminar, jurnal, maupun
buku-buku. Berbagai publikasinya telah di terbitkan baik di dalam
maupun di luar negeri. Berbagai penghargaan pun diterima Hikmahanto
di antaranya British Achieving Award dari Pemerintah Inggris.
M. Ajisatria Suleiman, SH., LL.M
Dosen Hukum Interanasional, Fakultas Hukum Universitas Indonesia. Aji
mendapatkan gelar SH dari UI (2008); LL.M dari Hamburg University
(Germany) dan Erasmus University of Rotterdam, Belanda (2010) dan
MLE dari Gent University (Belgium) (2010). Pada tahun 2007, ia
memperoleh predikat sebagai Mahasiswa Berprestasi Utama FH UI. Aji
menjuarai lomba karya tulis tingkat nasional dan terlibat dalam berbagai
penelitian bersama lembaga penelitian di FH UI serta pernah menjadi
pemimpin redaksi untuk jurnal hukum mahasiswa “Juris” yang
diterbitkan oleh Lembaga Kajian Keilmuan FHUI.
Ni Putu Anggraeni, SH.
Lulus dari Fakultas Hukum Universitas Indonesia (2010). Sebagai
mahasiswa hukum, ia aktif di Indonesian Journal of International Law
yang diterbitkan oleh Pusat Studi Hukum Internasional. Tak lama setelah
ia lulus, dia bergabung dengan Kementerian Luar Negeri RI pada
angkatan Sekdilu XXXVI. Saat ini, dia bekerja di Direktorat Hukum,
Direktorat Jenderal Hukum dan Perjanjian Interasional, Kemlu RI.
Novriady Erman, SH.
Associate pada Kantor PBB untuk Narkoba dan Kejahatan (UNODC).
Sebelumnya, konsultan anti-korupsi pada UNODC dan bekerja sebagai
pengacara perusahaan di Lubis Ganie Surowidjojo Law Firm. Menempuh
pendidikan di Fakultas Hukum Universitas Indonesia. Aktif pada
kegiatan International Law Moot Court Society, Asian Law Student
Association,
Indonesian-Portugal
Friendship
and
Cooperation
Association, dan Associated School Project Network-UNESCO.
129
JURNAL OPINIO JURIS
Paku Utama, SH., LL.M.
Konsultan pengembalian aset untuk Bank Dunia, Jakarta. Dia merancang
manajemen pelatihan pengembalian aset di UNODC, Jakarta. Dia adalah
koordinator kursus khusus terintegrasi pada pemahaman gatekeeper di
KPK, konsultan untuk pelatihan pengembalian aset di Kejaksaan Agung
RI, trainer pada Jakarta Center for Law Enforcement Cooperation
(JCLEC), dan juga Wakil Sekretaris Eksekutif Indonesian Center for AntiMoney Laundering Study (ICAM) di Fakultas Hukum Universitas
Indonesia. Dia mengajar di Universitas Al-Azhar dan Universitas
Indonesia. Memperoleh LLM dan pelatihan yang berfokus pada
pengembalian aset dan kejahatan keuangan melalui Transnational Criminal
Justice Program di Western Cape University (Afrika Selatan) dan
Universitas Humboldt Berlin (Jerman).
Reda Manthovani, SH., LL.M.
Spesialis hukum internasional dan pencucian uang di Kejaksaan Agung
RI. Kini menjabat sebagai Kepala Kejaksaan Negeri Cilegon. Memperoleh
gelar SH di Universitas Pancasila (1992) dam LLM di European Business
Law Faculté de Droit, D’Economie et Des Sciences D’Aix Marseille,
Perancis.
“ Nothing is more destructive of respect for the government
and the law of the land than passing laws which cannot be
enforced. ”
- Albert Einstein -
130
JURNAL OPINIO JURIS
OPINIO JURIS
Jurnal Opinio Juris menerima tulisan dengan tema hukum internasional,
perjanjian internasional, diplomasi, hubungan internasional, dan isu-isu
dalam negeri yang memiliki dimensi hukum dan perjanjian internasional.
Ketentuan Penulisan:
1. Panjang tulisan 10—20 halaman kertas A4 (termasuk abstraksi, isi,
catatan kaki, dan daftar pustaka), format MS Word, spasi satu setengah,
font Times New Roman ukuran 11. Untuk catatan kaki, spasi satu dan
font Times New Roman ukuran 10;
2. Tulisan dapat dibuat dalam bahasa Indonesia atau bahasa Inggris;
3. Setiap naskah harus disertai abstraksi maksimal 1 halaman A4. Untuk
tulisan dalam bahasa Indonesia, abstraksi dibuat dalam bahasa Inggris
dan untuk tulisan dalam bahasa Inggris, abstraksi dibuat dalam bahasa
Indonesia. Jumlah kata abstraksi sekitar 100 kata.
4. Rujukan dibuat dalam bentuk catatan kaki (footnote);
5. Tulisan harus asli dari penulis, belum pernah diterbitkan, dan tidak
sedang dikirimkan ke penerbit lain;
6. Untuk setiap naskah yang masuk, redaksi berhak mengedit dengan tidak
mengubah maksud dan isi tulisan;
7. Apabila diperlukan, redaksi akan memberikan masukan dan
rekomendasi kepada penulis tentang tulisan yang dikirim;
8. Setiap naskah yang dikirim harus disertai daftar riwayat hidup singkat
penulis (curriculum vitae) yang setidak-tidaknya terdiri dari pekerjaan,
pendidikan, alamat, dan nomor telepon yang bisa dihubungi;
9. Setiap naskah yang disetujui untuk diterbitkan akan mendapatkan
kompensasi finansial;
10. File naskah beserta kelengkapan lainnya dapat dikirim ke email Redaksi.
Sekretariat Direktorat Jenderal Hukum dan Perjanjian Interansional
Jalan Taman Pejambon No. 6 Jakarta Pusat
Telp: +62 21 3846633 Fax: +62 21 3858044
Email: [email protected]
http://pustakahpi.kemlu.go.id/
131

Opinio Juris Volume 11, 2012 - Basel Institute on Governance

Transcription

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