Recovery of assets representing the proceeds of crime is one of the global problems faced by countries in the world today in tackling money laundering. This is because corruptors usually flee from the applicable laws and regulations in their country to hide assets representing the proceeds of crime abroad, so the crime will be difficult to trace. Corruptors are free to move assets representing the proceeds of crime to countries that have strict systems related to the security and confidentiality of fund owners and taxes that are quite low. At present, although many countries have agreed to exchange information about the existence of funds that are considered suspicious, there is still a loophole for corruptors to continue their evil intentions to move their assets to safe places and away from the pursuit of law enforcement agencies, through money laundering.
One of the means that law enforcement or anti-corruption agencies can use to hunt down assets representing the proceeds of crime that have been taken abroad is through regional or international cooperation carried out bilaterally or multilaterally with other countries in accordance with Article 44 of Law No. 15 2002 concerning Money Laundering as amended by Law No. 25 of 2003. This international cooperation can be implemented in the form of the MLA/Mutual Legal Assistance to prevent and mitigate the occurrence of transnational crimes.
Indonesia has several basic rules for implementing the MLA, among others, Law No. 1 of 2006 concerning Mutual Legal Assistance in Criminal Matters, Law No. 15 of 2008 concerning Ratification of the Treaty on Mutual Legal Assistance in Criminal Matters, and internationally the MLA has been regulated in the United Nations Convention Against Corruption (UNCAC) which was ratified through Law No. 7 of 2006 concerning Ratification of the United Nations Convention Against Corruption 2003. As one of the state parties of the UNCAC, Indonesia can carry out mutual legal assistance under Article 46 point (1) of the UNCAC which is mandatory for the UNCAC state parties including Indonesia: “States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to the offences covered by this convention”.
The MLA/Mutual Legal Assistance carried out by Indonesia with the state parties of the MLA agreement is carried out with the aim of exchanging information in the framework of their respective law enforcements. The points mentioned in the agreement are usually related to investigations, prosecutions, and judicial proceedings in accordance with their respective laws and regulations. In addition, assistance is usually carried out between ministries of justice or between law enforcement agencies, in the form of: identifying or searching for individuals, obtaining certain documents, carrying out search and seizure requests, confiscating proceeds of crime, freezing assets, and other assistance in accordance with the parties' agreement.
Seriousness of All Parties
However, the implementation of the MLA between Indonesia and other countries still faces problems such as differences in the legal system and the strictness of the security system of the bank where the assets representing the proceeds of crime are hidden. This was explained by Kevin M. Stephenson, a former Senior Financial Specialist in the Finance & Market section of the World Bank Group, in his book “Barriers to Asset Recovery” (2011): “Most of the legal barriers are onerous requirements to the provision of mutual legal assistance (MLA); excessive banking secrecy; lack of non-conviction based asset confiscation procedures; and overly burdensome procedural and evidentiary laws, including the need to disclose information to asset holders during investigations. Removing the legal barriers is obviously essential. Absent a clear and sound legal framework, asset recovery becomes, in a best-case scenario, arduous and, in a worst-case scenario, impossible.” For the UNCAC state parties, matters related to the tightness of the bank security system can be minimized on the basis of Article 46 point (8) of the UNCAC, where the state parties of the UNCAC are prohibited from refusing to provide mutual legal assistance on the grounds of bank confidentiality. However, if the MLA is implemented with countries that are not state parties to the UNCAC or other international agreements, the difficulties of implementing the MLA cannot be avoided, unless these countries have other agreements on how to minimize the obstacles that will be faced in the MLA implementation.
As a result of the problem that arises from the implementation of the MLA, asset recovery cannot be carried out maximally. In addition, it is also due to the lack of seriousness of the parties concerned in implementing asset recovery. Particularly in Indonesia, the rules to prevent and mitigate money laundering have not been comprehensive stipulated in laws and regulations, especially in the legal policy of the government. These things can be said to be some of the factors that resulted in Indonesia still ranked 62nd out of 126 countries in the 2019 Law Enforcement Index, which was released by the World Justice Project (WJP), where corruption eradication within the government and implementation of an effective, clean, and impartial criminal justice system have not been maximized. For this reason, specifically, the MLA must be carried out well, together with other countries, so that in the future money laundering of assets representing the proceeds of corruption, bribery, smuggling, labor trafficking, immigrant trafficking, proceeds of banking crime, narcotics, human trafficking, terrorism, kidnapping, embezzlement, and others can be prevented and eradicated by law enforcement and anti-corruption agencies in Indonesia.
Written by Frans Hendra Winarta.
Published on The Jakarta Post