Second Edition, 2014
Copyright @ Dr. Muhammad Yusuf
Indonesia Transactiob Report and
Analysis Center (INTRAC)
Jl. Ir. H. Juanda No. 35
ALL RIGHTS RESERVED
The contents of this book may not be reproduced in part or in whole in any form without permission from the publisher, except for citations in the writing of an article or scientific paper
A BRIEF OVERVIEW
n December 3, 2013 in Berlin, Transparency International, released the news that the abuse of power, bribery and secret relationship continues to ravage communities around the world. Corruption within the public sector remains one of the world’s biggest challenges. In the 2013 Corruption Perception Index published by Transparency International, said that more than two? thirds of the 177 nations are under 50, on a scale from 0 (perceived as very corrupt) to 100 (considered very clean). The Corruption Perceptions Index is based on experts’ opinions of public sector corruption.
According to Transparency International Chairman, Huguette Labelle said: “The Corruption Perceptions Index 2013 demonstrates that all countries still face the threat of corruption at all levels of government, from the issuing of permits to the local enforcement of laws and regulations”. (See more at: http://cpi.transparency.org/ cpi2013/press/#en).
Meaning that corruption is still regarded as one of the causes of poverty in the community life in a country, even people internationally.
E. Sahetapy, is a professor of law at the University of Airlangga, Surabaya, never suggested that law enforcement, especially the Corruption Eradication Commission (KPK) to immediately impose a model of proof in order to eradicate corruption in Indonesia. It is not apart of the plan to the Commission (KPK) in carrying out their duties at once confiscate wealth (assets) persons charged with corruption.
Law enforcement can use the principle of proof in cases of corruption, so that the disease can be eradicated corruption and also effective for prevention. After all, the principle of reversal of the burden of proof has been widely used in other countries. And according to Seno Adji Indriyanto, former Chief Justice of the Republic of Indonesia (1974?1982), eradication is very difficult because the probative quality is also very difficult. Besides these criminal acts are usually done by professionals who have a higher education. Therefore it is necessary reversal of the burden of proof system to trap the corrupt. Additionally integrity, ability, and activity of the perpetrators are generally very susceptible to environment of corruption. Performers deeply understand the working environment and formatting to avoid tracking of the crime of corruption.
The principle of reversal of the burden of proof has such great benefits given one of the constraints is the eradication of corruption is made difficult by proof that the perpetrators, thus proving that the system needs to change to the prosecutor initially charged the switch to the defendant. System reversal of the burden of proof is there that is never absolute total. This means that only a limited applicability, namely the offense relating to gratuities and also deals with bribery.
The pattern of proof does not mean “twisting” the rule of law. Of proof is one of the legal principles that apply that “burden of proof” is also owned by the person who was accused of corruption. So, if accused of corruption cannot prove that their wealth is not from the proceeds of corruption, then the property can be confiscated to the state. But keep in mind that the application of the principles of proof should not cause excess potential violations of Human Rights (HAM). Do not let good intentions enforce this principle of proof utilized manipulate the scene of the rule of law with arbitrary. The rule of law should not be used as a tool for blackmail. Signs law still must be prepared carefully. Must be prevented early presence of law enforcement officers who use this principle to open a new land of corruption with extortion patterns.
Accordingly, for the extraordinary crime such as corruption is necessary instruments must also be extraordinary, that state financial loss recovery can be effective, among other things by introducing the concept of proof in civil proceedings in full, particularly in relation to property of the defendant (suspects, accused or convicted). This means that given the defendant the burden of proving that wealth is not derived from crime (corruption). In addition it is necessary simplification of the process, i.e. the process of sequestration (conservatoir beslag).
Application of proof reversal system is not related money laundering, is not to give corporal punishment (prison) to the offender, but to confiscate the proceeds of crime. If a civil settlement, then it should be done separately from the criminal settlement. This is nothing new, so it is necessary not only that the new Act, but also new thinking must also. As set forth in the Law of the Republic of Indonesia No. 8 of 2010 on the Prevention and Eradication of Money Laundering, that the authority of the investigators in the handling of money laundering is also implemented based on the book of the Law of Criminal Law, unless otherwise provided by the Law of the Republic of Indonesia Number 8 of 2010 on the Prevention and Eradication of Money Laundering Indeed, we must take action against (punish) extraordinary crime offenders such as corruption and money laundering. However, actions are far more important is how we approach and how effective and efficient to prevent it. Because crime prevention measures is an action that is more elegant and humane, that directly contribute to improving the quality of human civilization.. Such as medicine expert said: “Better to prevent rather than treat disease”, where the cost of workarounds are not too expensive\ and also relatively fast compared to the punishment. Moreover, enforcement efforts are extraordinary crime consistently and justice is one of the significant action in our efforts to prevent a recurrence of crime and the same crime.
This book was originally written in Indonesian with the title of “Miskinkan Koruptor !
Pembalikan Beban Pembuktian: Solusi yang Terabaikan”, which is then translated into English. Thus, the book is expected to be able to read other peoples, so that they can
understand the legal progress in addressing extra ordinary crimes (especially corruption and money laundering) in Indonesia.
So a little review about the existence of this book, and hopefully useful, amiin !
Jakarta. December 18, 2013
TABLE OF CONTENTS
Table of Contents__x
Corruption in the International Perspective ¬__15
A. The Issuance of the UN Convention Against Corruption (UNCAC) 2003 __15
1. Preventive Measures__ 23
2. Criminalization and Law Enforcement__24
3. International Cooperation__26
4. Technical Assistance and Information Exchange__29
5. Asset Recovery__ 31
B. Efforts in Prevention and Eradication of Corruption in Indonesia__ 3
The Amputated Hope for Welfare__43
A. The Government’s Stance Towards UNCAC 2003__ 43
B. The State’s Ability In Realizing The People’s Welfare__55
The Dilemma of the State’s Financial Losses__71
A. Good Governance and the Management of States’ Finances__71
B. Understanding The State’s Financial Losses in the Eradication of the Crime ofCorruption__ 82
~ gal Consideration of the Panel of Judges in the Decision for Criminal Case of
Defendant E.C.W. Neloe__86
~ Criminal Case Decision under the name of Defendant Adrian Herling
PPATK as a Financial Intelligence Unit__107
A. The Role of PPATK In The Tracing of Assets of a Criminal Act __107
B. Asset Forfeiture of a Criminal Act __118
1. The Implementation of NCB Asset Forfeiture in the United States of America__126
2. The Implementation of Unexplained Wealth in Australia__132
3. The Implementation of NCB Asset Forfeiture in the Philippines__137
C. Optimization of Mutual Legal Assistance (MLA)__139
No Safe Haven for Corruption __147
A. The Reversal of Burden of Proof System__147
1. Types of Burden of Proof__150
2. Theory of Proof__151
B. The Definition of the Reversal of Burden of Proof__153
C. The History of Reversal of Burden of Proof__158
D. The Implementation of Reversal of Burden of Proof in crime of Corruption__164
~ Case Summary under the name of Defendant H. Syarifuddin, SH, MH__169
E. The Implementation of Reversal of Burden of Proof in Crime of Money Laundering__177
~ Case Summary under the name of Defendant DR. Drs. Bahasyim Assifie, M.Si bin Khalil Sarinoto__186
~ Case Summary under the name of Defendant Yudi Hermawan bin Hadi Samsudin __31
~ Case Summary under the name of Defendant Agi Sugiyono, SE bin Oyo Sukriya__241
Table 1. Follow-up Monitoring of the Handling of BPK’s Investigation Report Containing Criminal Elements that was delivered to the authoritative Institutions for the Period of End of 2003 up to 2nd Semester of 2012__42
Diagram 1. Cooperation among Fellow FIU__151
Diagram 2. “Reserve” Mutual Legal Assistance__152