Jurnal Hukum Dan Perjanjian Internasional

OPINI
ARTIKEL Asset Recovery: The Endless Fight Paku Utama
JURIS
Volume 11 MeiAgustus 2012
DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA
The Role of International Instruments in Asset Recovery: What can we learn so far? Novriady Erman Recovering Indonesias 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
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PENGEMBALIAN ASET CURIAN
DIREKTORAT JENDERAL HUKUM DAN PERJANJIAN INTERNASIONAL KEMENTERIAN LUAR NEGERI REPUBLIK INDONESIA 2012
Jurnal Hukum dan Perjanjian Internasional OPINIO JURIS Volume 11 MeiAgustus 2012 PENGEMBALIAN ASET CURIAN 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 Kementerian Luar Negeri Jl. Taman Pejambon No. 6 Jakarta Pusat Telp. +62 21 3846633 Fax. +62 21 3858044 Email : opiniojuris@kemlu.go.id 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.
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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 INDONESIAS ASSETS: PAST, PRESENT AND FUTURE ............................................................................................................. 44
Amien Sunaryadi and Dayu Nirma Amurwanti
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
Arinta Luthri Handini
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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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. Its 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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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 viii
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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 Indonesias 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 ix
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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
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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. xi
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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 opiniojuris@kemlu.go.id. 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 globalisations 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
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 Frberg 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.
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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 recoverys 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
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 Cullar 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.
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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.
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Brun, et al., Asset Recovery Handbook, 20.
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Stages of Asset Recovery 1 3
2
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 expos.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.
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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
Phyllis Atkinson, Introduction, in Tracing Stolen Assets: A Practitioners Handbook, ed. Phyllis Atkinson, (Basel: Basel Institute on Governance, 2009), 20. 14 Brun, et al., Asset Recovery Handbook, 6. 15 See above.
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(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 criminals 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
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).
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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 Frberg, 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
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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 Switzerland Luxembourg Liechtenstein Jersey UK Total Frozen $ 65 M $600 M $193 M $ 20 M $200 M $1,078 M $692 M $ 7M $180 M Repatriation $505 M Total $570 M $600 M $200 M $200 M $200 M 1,770 M
The stolen assets from the Abacha case sheltered in developed countries
light of Switzerlands 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.
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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.
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are required to act as an intermediary and distance commission of the predicate crime from the crimes 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
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 Practitioners 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
28
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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 Practitioners 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.
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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 gatekeepers 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).
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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
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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
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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 1324, 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
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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.
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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
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
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former dictator of Chile, Augusto Pinochet.12 It is worth noting as well that Hosni Mubaraks, 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 worlds 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 13
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.
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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 enforcements 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
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.
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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 instruments 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
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.
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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,
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 21
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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
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. 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.
24 23
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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
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help the Focal Point Initiative focus on timely information exchange which will assist in the freezing/forfeiture of the proceeds of UNCACs 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
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
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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/.
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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
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,
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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
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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
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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. UNODCs 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
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.
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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.
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
40
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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.
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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 Practitioners 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.
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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 36
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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 37
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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 Mobutus 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
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 Nigerias 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. 39
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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. 40
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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 41
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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. 42
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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.***
Moises Naim, The Five Wars of Globalization, Foreign Pol'y, Jan./Feb. 2003 Issue 134, at 28.
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RECOVERING INDONESIAS ASSETS: PAST, PRESENT AND FUTURE

Amien Sunaryadi and Dayu Nirma Amurwanti
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. Indonesias experience in asset recovery is a mix of success and perils, with much to be learned.
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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 Thahirs 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. Indonesias fight to recoup Pertaminas 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 1988PT 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 Pertaminas 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
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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 Generals 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.
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 48
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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 Indonesias 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 49
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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
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 Indonesias legal practice.
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See UNCAC, Chapter V, Art. 51-59.
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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.
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
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 Centurys 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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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 Generals 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. Indonesias 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.
For discussion, see OECD Indonesia, in http://www.oecd.org/dataoecd/30/52/39984819.pdf (last access 25 May 2012).
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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 Guernseys Financial Intelligence Service (FIS) under the suspicion that Garnets source of fund was proceed of crime. BNPs 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. Garnets account in BNP was frozen subject to Garnets 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 worlds 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
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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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.
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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.
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 countrys 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
Spore refuses to renegotiate extradition treaty with RI Jakarta Post, 29 September 2011, http://www.thejakartapost.com/news/2011/09/29/spore-refuses-renegotiateextradition-treaty-with-ri.html (last access 25 May 2012).
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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.
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 UNCACs 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).
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 states 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 62
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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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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 64
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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. 65
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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 INFORMAL 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
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
Coercive Measures
Level of Coerciveness and formality (Modified from Kaeratithanachaiyos, 2012)
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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 67
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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 publics 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 68
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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, 69
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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 Agreement Multilateral Cooperation International Forum Capacity Building Advocacy Coalition Fund Raising & donors management
International Relation
KPK International Cooperation

International Legal Assistance
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 71
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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 72
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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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*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 74
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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. 76
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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 writers 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). Indonesias 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 countrys 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;
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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 80
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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,
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 judges 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 tmoins , aveu Preuve vocale ou, ou les crits Preuve instrumentale, et ou les presomptions Preuve
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 tre libre mais par tous les moyens rapporte. Elle l'doit tre en les Principes respectant imposs par la morale et la loyaut. La Recherche de la Preuve impose le respect de la dignit 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
Ibid. Page 266. Henry Leclerc, Lintime Conviction de juge : Norme Dmocratique de la preuve. Accessed at forum des Juriste francophones www.lejuriste.mantadalhilal.com, on 2 August 2011. 9 Jean Marie Fayol-Noireterre, Lintime Conviction, fonderont de Lacte 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 Andr vitu, Trait de Droit Criminel-Procdure Pnale. (Paris : dition Cujas, Cinqume dition, 2001). page 183. 11 Corrine Renault Brahinsky, Procdure Pnale, La Poursuite, LEnqute et lInstruction, le Jugement, le Mineur. (Paris : Gualino diteur, Cujas, Cinqume dition, 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 mans rights.
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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 countrys institutions. Such cooperation shall involve the Ministry of Foreign Affairs (Diplomatic Channel), the Police Force, the Attorney Generals 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 Authoritys 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 84
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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 85
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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. 87
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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 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
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 Nigerias late dictator Sani Abachas 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. 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
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
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
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 Haitis 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 92
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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 Institutes 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.
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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
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 countrys 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 95
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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. 97
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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 ones 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 98
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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 100
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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 101
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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
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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 103
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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 ICARs 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
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. 105
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THE ROLE OF GATEKEEPERS IN OBSCURING THE LOOTED: PRACTICAL CHALLENGES

Arinta Luthri Handini
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 Tommys associates accounts with the help from his lawyer, via governments accounts. 106
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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 clients satisfaction would always be a primary concern in any circumstance. Ensuring clients 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 Komisars 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 everybodys 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 108
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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 109
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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 110
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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 111
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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 112
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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 countrys 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 113
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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 partys 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. 114
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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 its 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 115
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comprehensive plans and programs in setting the priority related to the gatekeepers profession; whether it will guard the looting assets or guard the states 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 117
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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 118
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technique that is permitted in one jurisdiction may not be permittedor may have different procedural requirementsin 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 jurisdictions legal system, law enforcement structures, resources, legislation, and procedureswithout 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 offensesparticularly, 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
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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
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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 bisniscontohnya 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.
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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.
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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
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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
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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
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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 (20032007), 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 20062007. 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.
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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 (20102011); 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 (20052007) 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 (20072011), dan peneliti pada Pusat Studi Hukum dan Kebijakan (20092010). 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
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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
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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.
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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 Facult de Droit, DEconomie et Des Sciences DAix 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
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Jurnal Hukum dan Perjanjian Internasional
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 1020 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 Kementerian Luar Negeri Jalan Taman Pejambon No. 6 Jakarta Pusat Telp: +62 21 3846633 Fax: +62 21 3858044 Email: opiniojuris@kemlu.go.id http://pustakahpi.kemlu.go.id/
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OPINI

ARTIKEL Asset Recovery: The Endless Fight Paku Utama

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THE ADMISSIBILITY OF EVIDENCE OBTAINED ABROAD ............ 76

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PRACTICAL HURDLES TO EFFECTIVE INTERNATIONAL RECOVERY OF STOLEN ASSETS............................................................... 88

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Sambutan Direktur Jenderal Hukum dan Perjanjian Internasional

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Sambutan Country Manager UNODC Indonesia

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Number/ISSN) sejak Januari 2011. xi

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ASSET RECOVERY: THE ENDLESS FIGHT

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Brun, et al., Asset Recovery Handbook, 20.

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Stages of Asset Recovery 1 3

See above, 20-22.

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Illustration of the linkage (source: author)

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