IMPLEMENTATION OF FOLLOW THE MONEY IN THE ERADICATION
OF CORRUPTION AND MONEY LAUNDERING
Joeroy1, Jeane N.
Sally2, Wiratno3
Universitas Trisakti, Jakarta, Indonesia1,3
Universitas Tarumanejeanegara, Jakarta, Indonesia2
KEYWORDS |
ABSTRACT |
follow
the money, corruption, money laundering, financial losses. |
This
study aims to identify and analyze the implementation of follow the money in
eradicating corruption and money laundering in order to recover state
financial losses. This research is normative research, this research was
carried out by examining library materials in the form of primary, secondary,
and tertiary legal materials, with an empirical-analytical approach, which
uses concrete cases to become research objects, and uses relevant theories.
The follow the money policy in eradicating corruption and money laundering in
Indonesia has not been effective enough in returning assets that have been
confiscated and has resulted in losses to state finances. Therefore, it is
necessary to strengthen the system for returning assets resulting from acts
of corruption with the Asset Recovery Bill, increasing FINTRAC capacity,
strengthening asset confiscation, and cooperation between countries to track
assets resulting from crimes abroad and maximize returns through Mutual Legal
Assistance. The future policy direction is to strengthen the system for
recovering assets and confiscating assets through conviction-based forfeiture
and non-conviction-based forfeiture, as well as civil lawsuits. In the
Indonesian legal system, the follow the money policy is very important to
overcome corruption and money laundering. However, the return on assets is
still not optimal. Therefore, the Bill on Asset Recovery and the Bill on Cash
Payments as well as the application of Articles 18 and 37 of the Corruption
Law are needed to confiscate the proceeds of crime through criminal
compensation. |
DOI: 10.58860/ijsh.v2i5.43 |
|
Corresponding Author: Joeroy
E-mail: joeroyju@gmail.com
INTRODUCTION
In the international world,
anti-corruption measures have become a global necessity which is currently a
problem not only for poor and developing countries, but also for developed
countries. In fact, it has become a routine movement that all countries carry
out its eradication, in fact everyone is aware that in "eradicating
corruption" around the world, corruption is getting more attention than
other criminal acts and various additional efforts to eradicate it (Zafar et al., 2023). This
phenomenon must be understood considering the negative impact of corruption
crimes, the impact can affect various areas of life, so that corruption is a
serious problem that can endanger development (Ferrali, 2020). Socio-economic,
social stability and security, as well as politics, and can undermine
democratic moral values, because these actions gradually seem to become a
culture. Corruption is a threat to the ideals of a just and prosperous society (Lubis, 2017). Basic
understanding regarding criminal acts of corruption, Andi Hamzah states:
"Corruption
comes from the Latin corruption or corruptus. It was from Latin that it descended
into many European languages such as English, namely Corruption, corrupt;
France, namely corruption; and the Netherlands, namely corruptie (korruptie).
We can venture that it was from the Dutch language that the word descended into
Indonesian, namely "corruption".
Admit it or not, there are
obstacles, both technical and non-technical, to eradicate corruption. One way
to overcome this problem is to have an anti-money laundering system, which can
be used as an alternative and a new paradigm for eradicating corruption. Mien
Rukmini stated that:
“Corruption
is an extraordinary crime (extra ordinary crime) as well as a crime that is
difficult to find criminals (crime without offendes), because corruption is in
an area that is difficult to penetrate. Why is that, because corruption is said
to be an invincible crime which is very difficult to obtain procedural proof,
where the modus operandi is systematic and congregational.”
So that demands
for eradicating in extra ways need to be carried out, Satjipto Rahardjo said
that, "preventing and eradicating corruption is not enough to be done in a
conventional way, it must be done in a different way and outside the prevalence
of other crime prevention" (Fathra,
2020). Baharuddin Lopa cites the
opinion of David M. Chalmers, explaining the meaning of the term
"corruption" in various fields, namely those relating to bribery,
those related to manipulation in the economic field, and those involving the
field of public interest (Suryani,
2013). Chalmers, stated:
“Financial
manipulations and delictions injurious to the economy are often labeled as
corrupt, the term is often applied also to misjudgements by officials in the
public economy. Disguised payments in the form of gifts, legal fees,
employment, favors to relatives, social influence, or any relationship to the
public and welfare services, with or without the implied payment of money, is
usually considered corrupt.”
Furthermore,
Baharudin Lopa also describes other forms of corruption, which are termed
political corruption, namely (Evi
Hartanti, 2023):
"Electoral
corruption includes the purchase of votes with money, promises of office or
special favors, coercion, intimidation, and interference with administrative of
judicial decisions, or governmental appointments"
As an
illustration, the birth of anti-money laundering regimes in developed countries
was originally the answer to the frustration of law enforcers in fighting the
illicit traffic of narcotics and drugs. This answer is partly because the
anti-money laundering regime focuses more on tracing the flow of money proceeds
from crime (follow the money) (Sparkes,
2022) . Thus, the use of the
principle of follow the money in other crimes, especially corruption has a
close relationship, namely shifting the orientation of law enforcement not only
to follow the suspect or chasing the perpetrators of the crime, but by
following the money it will be clearer where the money is. has been corrupted (Husein,
2019) . Yunus Husein stated:
"Keep
in mind that the proceeds of crime are the "life blood of the crime
", meaning that it is the blood that feeds the crime as well as the
weakest point in the crime chain that is the easiest to detect. Efforts to cut
the chain of crime apart from being relatively easy to do will also eliminate
the motivation of the perpetrators to commit crimes because the purpose of the
perpetrators of crimes to enjoy the proceeds of their crimes is hindered or
difficult to do.
On the same view,
that the relationship between the crime of corruption is very close to the
crime of money laundering, because the crime of money laundering is a
derivative crime which is always preceded by a predicate crime, such as the
crime of corruption (Putra,
2021). This means that the process of
money laundering will never be carried out without the object of money
laundering, namely assets resulting from predicate crimes, in this case
corruption. So that preventing and eradicating money laundering is the same as
preventing and eradicating corruption as a predicate crime. In addition to the
four factors mentioned above, money laundering methods are already very close
to corruption actors and are quite well known by the international community,
namely buy and sell conversions, offshore conversions, and legitimate business
conversions (Ogbeide
et al., 2023). So, it is appropriate to
use the approach of tracking money in financial transactions on the proceeds of
corruption, which allows for the prevention and deterrence of perpetrators of
corruption, because the use of money resulting from corruption will be
hampered.
The activities of
the Financial Transaction Reports and Analysis Center (FINTRAC) as a money laundering intelligence
agency assist the prevention and eradication of criminal acts of corruption by
authorized officials by analyzing reports received by FINTRAC,
with the results of analyzes related to corruption (Anandiasyah,
2020). For investigators of
corruption, namely. The KPK and the Attorney General's Office. In addition, FINTRAC can also provide information
requested by corruption investigators through an information exchange mechanism
that can be used in connection with investigations, pretrial investigations,
and prosecutions. Arrangements for the legal prosecution of money laundering
crimes are the key to successful monitoring of the FINTRAC's
analysis results submitted to court, so that the perpetrators, especially
corruption, cannot avoid the threat of punishment and the benefits derived from
it can be confiscated by the state. Without the coordination and cooperation of
enforcers of the Money Laundering Law, prevention and eradication of money
laundering and corruption cannot be dealt with effectively.
Whereas in the
eradication of Corruption, especially in several cases, for example, with the
defendants Wa Ode Nurhayati, Gaius Tambunan, and Benny Tjokrosaputra. In the
case of Gayus Tambunan, it started with suspicions from the Financial
Transaction Reports and Analysis Center (FINTRAC)
regarding the account belonging to Gaius H. Tambunan at Panin Bank. The police
then investigated this case. On October 7, 2009 investigators from the Criminal
Investigation Unit at the National Police Headquarters named Gaius H. Tambunan
as a suspect by sending a Notice of Commencement of Investigation (SPDP). In
the dossier sent by Polri investigators to the prosecutor's office, Gaius H.
Tambunan was charged with three layers of articles, namely corruption, money
laundering and embezzlement. This is because Gaius H. Tambunan is a civil
servant and has Rp. 25 billion in Panin Bank. The results of the prosecutor's
research stated that there was only one article that was proven to indicate a
crime and could be transferred to the court, namely embezzlement, but this was
not related to money worth Rp. 25 billion which FINTRAC
and the Police are making a fuss about. And where the loss of state finances in
this case is estimated to be up to Rp. 1.5 trillion, even though the evidence
in court is unable to reveal this.
Law enforcement
against criminal acts of corruption that cause losses to state finances will
experience difficulties if it only relies on the follow the suspect based
conventional model (Isra
et al., 2017). Corruption is often the
predicate crime for money laundering and financial-based law enforcement
requires more efficient methods, such as the follow the money approach adopted
by FINTRAC. Furthermore, the author wants to
conduct a study on the efficiency of disclosing corruption and strengthening
the FINTRAC institution with the function
of a Forensic Auditor or Financial Investigator. This will assist
investigations, investigations, prosecutions, and judicial processes against
perpetrators of corruption.
The successful
disclosure and early detection of assets resulting from corruption that have
been integrated with the banking system will greatly assist investigations in
finding out how much loss is caused by corruption, and with the existence of an
Analysis Report (LHA) of Suspicious Financial Transaction Reports (LTKM) made
by FINTRAC is the result of tracer assets from
the perpetrators of criminal acts in order to confirm the existence of evidence
for the consequences of criminal acts of corruption. So, in the process of
inquiry and investigation referred to, it would be even more ideal if the
amount of state financial losses that had occurred could be known through the
results of a review from the FINTRAC, so that the
Public Prosecutor in preparing the Indictment could also postulate a valid
calculation of the state financial losses that had occurred. Moreover, FINTRAC needs to confirm the Analysis Result
Report (LHA) with the Calculation of State Financial Losses by the BPK RI as
stipulated in the BPK Law and in accordance with the Constitutional Court
Decision Number 31/PUU-X/2012 dated 23 October 2012.
As a focus of
research, the author wants to examine the application of the follow the money
principle which was previously known in law enforcement against money
laundering, but in this case follow the money is used to uncover and eradicate
corruption. The paradigm shift, which originally involved enforcement, had to
first identify whether there was a criminal act of corruption and who the perpetrators
were, but in this case, it would first look at the presence or absence of a
suspicious transaction, placement or financial activity, so that it could be
traced to what extent uncovered potential losses. This will be supported
optimally by reversing the burden of proof on corruption. Efforts to follow the
money, in the end will bring hope to maximize demands for criminal sanctions
for replacement money in accordance with Article 18 of Law Number 31 of 1999
jo. Law Number 20 of 2001 concerning Eradication of Corruption Crimes, which
also encourages asset recovery as expected (Mahmud,
2020).
Law enforcement
against criminal acts of corruption followed by criminal acts of money
laundering will be successful if there is efficiency and effectiveness in
recovering state financial losses. Thus, it is felt that it is very important
if further research is carried out, so that various problems relating to the
above can be answered and new findings can be obtained in the development of
Indonesian criminal law enforcement against corruption and money laundering
crimes which are oriented towards returning state financial losses. The purpose
of this study is to identify and analyze the implementation of follow the money
in eradicating corruption and money laundering in order to recover state
financial losses.
METHODS
Judging from the type of research, this research is normative
research, this research was carried out by examining library materials in the
form of primary, secondary and tertiary legal
materials. This research can also be considered as research on document studies, where this document
study aims to re-examine data validity and reliability that can determine the
results of a study. Data collection activities in research can be done with
library research. In data collection activities there are several data
collection techniques, namely library research, interviews and questionnaires.
Which data collection technique should be used depends on the scope and
objectives of the legal research being carried out, particularly regarding the
type of data being studied. Then, the data in this study were analyzed
objectively based on existing juridical references in order to obtain answers
to the problems.
RESULTS AND DISCUSSION
Follow the Money Policy in
Law Enforcement Against Corruption and Money Laundering
The problem of
corruption has been coloring for a long-time various aspect of people’s lives,
this phenomenon has become a national problem that is very difficult to
overcome. The proclaimer of Indonesian independence, Muhammad Hatta said that: corruption tends to be entrenched, or
has become part of the culture of the Indonesian nation (Widhiyaastuti
& Ariawan, 2018). Even cynically, foreign
journalists call the condition of corruption in Indonesia: is the way of living
in Indonesia. Because of the dangers of corruption, efforts to eradicate
corruption have received serious attention from both the government and
society. Corruption Crimes and Money Laundering Crimes have a very close
relationship. This can be clearly seen in Article 2 paragraph 1 of Law Number 8
of 2010 concerning the Prevention and Eradication of Money Laundering Crimes.
According to Article 2 paragraph (1), the proceeds of the crime are classified
into 26 (twenty six) predicate crimes (Nugroho,
2016). Currently, money laundering
practices are very often carried out on money obtained from the proceeds of
corruption crimes. In Indonesia, this money laundering practice with the result
of acts of corruption committed by state officials has had a very significant
impact on increasing money laundering crimes (Hidayat,
2017). One of the efforts made by
perpetrators of corruption is to avoid legal action or payment of replacement money
by hiding or obscuring the results of their crimes through money laundering (A
Hayer, 2018). The handling of cases of
money laundering has an important meaning for the return of state assets
related to the eradication of criminal acts of corruption.
Law enforcers
(Police, Prosecutors' Office, KPK, and Courts) cooperate and coordinate along
with their respective functions, in efforts to prevent and eradicate money
laundering crimes. Law enforcers coordinate according to their duties
based on the FINTRAC analysis report. Cooperation between law enforcers is
not only related to eradicating money laundering crimes, but also in efforts to
eradicate criminal acts of corruption.
FINTRAC 's
collaboration with the Attorney General's Office is contained in a Memorandum
of Understanding (MoU), namely MoU Number KEP-612/A/JA/09/2004 and Number:
3/2.MOU/PPATK. In essence, this memorandum of understanding states that FINTRAC can provide
information to the Attorney General's Office regarding the results of FINTRAC's analysis
relating to the duties of the Attorney General's Office and other information
required by the Attorney General's Office in order to conduct investigations,
investigations and prosecutions of corruption (Sipahutar et al., 2017). In addition, the
prosecutor's office also plays an important role in eradicating money
laundering crimes by carrying out money laundering penalties handed down by
district court judges. FINTRAC also cooperates with the Supreme
Court in seizing funds related to money laundering and other criminal acts. The
Supreme Court issued a Supreme Court order to seize money from suspicious and
immoral accounts. This order is contained in Supreme Court Regulation (Perma)
Number 1 of 2013 concerning Procedures for Applications for Confiscation of
Assets for Money Laundering or Other Crimes.
This
regulation forms the basis for creating procedures to catch suspicious
accounts. The trial will be held by a judge. FINTRAC acts as a reporter while the judge
directs, examines, and decides on the cases submitted. The mechanism for
confiscating this treasure begins with a FINTRAC notification of a suspicious account
whose ownership identity is unclear. Based on the report, the appointed
district court will publish the account number on the bulletin board and in the
media. If someone believes they have the account, a judge will hold a hearing
to establish the identity and ownership of the account. In addition, the account
holder must be able to prove that the money did not originate from a crime.
However, if no one claims or admits after the notification, FINTRAC will
confiscate the funds in the account to be transferred to the country within 30
working days from the notification period. To strengthen anti-corruption, FINTRAC also
cooperates with the KPK. This cooperation regulates the exchange of
information. FINTRAC can provide information to the KPK regarding the
results of FINTRAC 's analysis
related to the KPK's duties and other information needed by the KPK in the
context of investigations, investigations, and prosecutions of corruption
crimes. The KPK can also provide information to FINTRAC regarding
the results of investigations, investigations, and prosecutions of corruption
related acts of money laundering by the KPK, as well as other information
needed by the FINTRAC to analyze alleged money laundering crimes.
Many
parties agree that the TPPU Law is more effective in recovering state finances
in terms of asset recovery, when compared to the Corruption Crime Law (Bahreesy, 2018) . The reason is because the ML
Law uses a new paradigm in handling criminal acts, namely by following the
money flow approach to detect ML and other criminal acts. Apart from that, the
TPPU Law is also able to ensnare judicial mafia actors. Efforts to eradicate
corruption and judicial mafia practices are not enough just to rely on bribery
and gratuity articles. The application of the Money Laundering Law has added
value, for example by applying the Money Laundering Law in the handling of a
judge's case, if prosecutors and investigators find assets from other cases
handled by the said judge, they can be immediately confiscated. Thus, the
Corruption Eradication Commission can contribute optimally in assisting the
implementation of the Money Laundering Law, in addition to using the Corruption
Crime Law, by reversing the burden of proof in corruption cases (Putra & Prahassacitta, 2021). For the handling of corruption
cases, law enforcers should also consider using the TPPU Law. This provision is
like a "powerful weapon" that will "paralyze" corruptors.
The
existing criminal act of corruption still raises several problems. The
substitution of having to pay replacement money with body confinement and
confiscation of property is only aimed at convicts creating opportunities for
corruptors to choose to extend their corporal sentences. In addition, the
paradigm related to money as a substitute for corruption also has a mistake.
Another problem that makes it difficult to return money for corruption crimes
to the state is because the Corruption Law has limited the amount of
compensation that can be imposed. In addition to obstacles to the legal
paradigm of eradicating corruption, efforts to recover state funds are also
hampered by the characteristics of corruption, the proof of which is very
detailed and takes a very long time. The average span of 2 to 3 years to
complete a corruption case provides a very loose time for the perpetrators to
eliminate traces of the assets obtained from corruption. Therefore, steps are
needed to maximize the return of money for corruption crimes to the state, such
as efforts to overhaul the legal system for eradicating corruption and
providing special funds to investigate corruption cases.
In
the history of asset confiscation, corruption in Indonesia has not yielded
significant results. Assets that were taken abroad, as in several cases of Edy
Tansil, Bank Global, BLBI cases, and other cases, to this day, law enforcement
officials are still having difficulties tracking them down to their
confiscation (Rahayuningsih, 2013). These obstacles are not only
due to the weak legal instruments, but also the lack of legal instruments that
regulate cooperation with other countries to confiscate the proceeds of crime.
Efforts to suppress crime by relying on the use of penal provisions also leave
other obstacles.
Improvements
in global regulation show that confiscation and confiscation of evidence and
instruments of infringement is an important part of efforts to reduce the
percentage of crimes. Covering the disclosure of demonstration criminal acts
and finding the perpetrators of the confiscation and further confiscation as
well as the tools of demonstration criminal acts are an important part of the
examination, examination, and examination of demonstration criminal acts. In
addition, to fortify existing crime regulations, several countries adopt arrangements
ranging from general regulation to prosecution for crime.
General
indictments can be resolved separately from criminal indictments against
perpetrators of criminal demonstrations. Based on current experience, the use
of such methods in various countries has proven successful in increasing the
value of seizable error returns. States parties that have signed and ratified
the UNCAC, as victims of corruption, have the right to be able to return the
proceeds of corruption that have been sent abroad. Article 53 of the UNCAC is
designed to ensure that each State Party recognizes that other State Parties
have the same legal standing in carrying out civil actions and other direct
means to recover property (assets) that were obtained illegally and flown abroad.
In
dealing with money laundering crimes, FINTRAC has a strategic role. The FINTRAC's important
task is to detect the occurrence of money laundering crimes and to assist law
enforcement related to money laundering and predicate offenses. In the view of
I Made Sadguna, "prevention and eradication of money laundering requires a
systematic and comprehensive mechanism that includes detection and legal
processes."
Therefore,
FINTRAC must carry
out its role in a systematic and comprehensive manner in the process of
detecting and enforcing the law against money laundering crimes. more broadly, FINTRAC can
cooperate and assist investigators and public prosecutors with the information
they have and their analytical skills. This information can come from the FINTRAC database
obtained either from financial service providers, or it can also come from
sharing information with Financial Intelligence Units from other countries and
can also receive information from third parties, both individuals and entities
regarding alleged money laundering by something party.
FINTRAC in carrying
out its main duties plays an active role in efforts to prevent and eradicate
criminal acts of money laundering and corruption, to support efforts to create
financial sector stability in Indonesia. So that FINTRAC formulates
its policies, namely; increasing the effectiveness of information management
and the quality of analysis results based on information technology; increasing
the effectiveness of delivery and monitoring of follow-up reports on the
results of analysis, giving, providing advice and legal assistance as well as
providing recommendations to the government.
As
with criminal acts of corruption, in financial crime investigations and
investigations (crimes committed with the aim of seeking money or wealth) we
recognize the follow the money and follow the suspect approaches. The follow
the money approach has long been used in the United States and is also known as
the anti-money laundering approach. This anti-money laundering approach was
formally introduced by the United Nations in 1988 in the Vienna Convention,
Convention Against Illicit Traffic in Narcotics and Psychotropic Substances (Riyadi et al., 2019) . In Indonesia, the follow the
money approach is regulated in Law (UU) No. 15/2002 as amended by Law No.
25/2003 which is commonly called the TPPU Law (Kresna, 2018) . Even though the TPPU Law has
been in force, there are still many law enforcers who are reluctant to apply
the follow the money approach. In every crime, there are at least three
components, namely the perpetrator, the crime committed, and the results of the
crime. The results of a crime can be in the form of money or other assets. The
follow the money approach prioritizes looking for money or assets resulting
from crime compared to finding the perpetrators of crimes. After the results
are obtained, then look for the culprit and the crime committed. In seeking the
results of criminal acts, a financial analysis approach is used.
Financial
analysis has not been able to confirm the occurrence of a crime and does not
provide evidence of the occurrence of a crime. These last two things are the
task of the investigator who receives the results of the financial analysis
from the Financial Transaction Reports and Analysis Center (FINTRAC). To see the
advantages of the follow the money approach, the author uses the example of
corruption which is difficult to eradicate because it involves unscrupulous
officials and financiers. With the additional follow the money approach, it
will be possible to reveal the officials who received the proceeds from the
corruption crime.
The
Money Laundering Law, which uses the follow the money approach, criminalizes
money laundering, namely the act of hiding and disguising assets resulting from
crime, so that they appear to be legitimate assets. Yunus Husein continued,
that apart from having an advantage, there are also several reasons for the
weakness of the follow the money approach in eradicating corruption.
Implementation
of Follow the Money in Cases That Have Permanent Legal Force (In Kracht Van
Gewijsde)
The
cases analyzed as evidence related to the effectiveness of follow the money
implementation include: Gaius Tambunan, this case was chosen because it is a
case that attracts public attention and has permanent legal force.
Analysis of
the Case of Gaius Halomoan P. Tambunan
In
this study, the authors analyze cases of corruption, followed by the most
complex crime of money laundering, namely the case of Gaius Halomoan Partahan
Tambunan, which analyzes from court decisions that have been in kracht,
including:
a.
South Jakarta District Court No.1195/Pid.B/2010/ PN.
Jkt.Sel
b.
Jakarta High Court Decision No. 06/PID/TPK/2011/ PT.
DKI.
c.
Indonesian Supreme Court Cassation Decision No. 1198
K/Pid.Sus/2011.
d.
RI Supreme Court Judicial Review Decision No. 38
PK/Pid.Sus/2013
e.
Tangerang District Court Number 49/Pid.B/2010/PN.TNG
f.
Decision of the Supreme Court of the Republic of
Indonesia Number 1146 K/Pid.Sus/2010
g.
Decision of the Supreme Court of the Republic of
Indonesia Number 55 PK/Pid.Sus/2015
h.
Decision of the Central Jakarta District Court Number
34 / Pid.B / TPK / 2011 / PN. Jkt. Pst
i.
Jakarta High Court Appeal Decision No. 22 / PID / TPK
/ 2012 / PT.DKI.
j.
Indonesian Supreme Court Cassation Decision Number 52
K/Pid.Sus/2013
k.
Decision of the Judicial Review of the Supreme Court
of the Republic of Indonesia Number 66 PK/Pid.Sus/2016.
On
January 19, 2011 the panel of judges handed down the first sentence for Gaius,
namely a sentence of 7 years in prison and a fine of IDR 300 million or a
subsidiary of 3 months in prison. Even though the public prosecutor had
demanded Gaius with a prison sentence of 20 years. The crime that Gaius was
proven to have committed at that time was abusing his authority when handling
tax objections from PT Surya Alam Tunggal (SAT) causing the state to lose Rp.
570.92 million. Then it was proven that he had participated in giving money to
the police worth a total of 10,000 United States (US) dollars. Gaius was also
proven to have given money to a judge in the amount of US$40,000 during a case
at the Tangerang District Court. Finally, Gaius was proven to have provided
false information about his Rp. 28 billion money which was suspected to have
come from corruption. As a result of his actions that violated his authority,
Gaius Tambunan caused losses to state finances of up to Rp. 570 million. Gaius
Tambunan was proven to have violated his authority by accepting PT SAT's tax
payment objections.
The
crime committed by Gaius Tambunan was not only corruption, but also bribery.
Gaius Tambunan once bribed investigator Director II of the Criminal
Investigation Agency and Police Commissioner Arafat Enanie through his
attorney, Haposan Hutagalung. This was done by Gaius Tambunan so that he would
not be detained and some of his property would not be confiscated by the state.
Apart from the police, Gaius Tambunan also bribed judge Muhtadi Asnun in the
amount of IDR 50 million to smooth out a case of tax evasion and money
laundering worth IDR 25 billion. At that time, the Attorney General's Office
was not satisfied with the sentence received by Gaius Tambunan and then filed
an appeal. In the appeal decision, the judge increased Gaius Tambunan's
sentence to 8 years in prison. Gaius Tambunan did not accept the decision on
appeal against him, which only aggravated and prolonged his sentence. On that
basis, Gaius then filed an appeal to the Indonesian Supreme Court. However, the
Supreme Court rejected the cassation filed by Gaius Tambunan. Not only that,
the Supreme Court also increased Gaius Tambunan's sentence to 12 years in
prison. Not stopping at cassation, Gaius Tambunan then submitted a judicial
review of his case to the Supreme Court. However, the Supreme Court refused.
Gaius Tambunan still must serve 12 years in prison plus other cases. Namely,
the 8-year sentence for the PT Megah Citra Raya tax evasion case. Then, a
sentence of 8 years in prison in the case of money laundering and bribery of
Brimob Kelapa Dua prison guards, Depok, West Java.
Then,
Gaius objected to verdict No. 52 K/Pid.Sus/2013, because the total sentence he
received in the corruption case was 28 years in prison. Gaius also had to serve
a sentence for the passport forgery case. The Supreme Court accepted Gaius
Tambunan's objection by reducing Gaius Tambunan's sentence to 26 years in
prison for three corruption cases. Apart from that, the Supreme Court sentenced
Gaius to 3 years in prison in the case of passport forgery. That way, the total
sentence that Gaius Tambunan has to carry out is 29 years in prison.
Former
Head of the Independent Team for the Gaius case, Inspector General of Police
matik Salempang, said that during an investigation into Gayus Tambunan, the
former tax official once said that the state losses for the 19 companies
handled by Gaius amounted to Rp 1.52 trillion. "Gaius said the state loss
was Rp 1.52 trillion," said Matthew during a hearing with the Tax Mafia
Panja and Commission III law at the DPR building, Jakarta, Thursday
(24/2/2011). According to Matthew, he could not confirm whether Gaius'
statement was true. It also explained that it should be investigated further.
Meanwhile, the Chairman of the Tax and Legal Mafia Committee III of the House
of Representatives, Tjatur Sapto Edy, emphasized that what Matthew Salempang
said was true. "That's all true," he said.
If
viewed historically, that the public prosecutor in the case of criminal acts of
corruption at the South Jakarta District Court Decision No.1195/Pid.B/2010/PN.
Jkt. Sel experienced a failure in proving the assets obtained from the proceeds
of the intended corruption crime, which in his prosecution only prioritized
imprisonment for 20 (twenty) years and a fine of Rp. 500 million, without any
claim for recovery of state financial losses or criminal compensation as
stipulated in Article 18 of the Corruption Law. So that the failure to recover
state financial losses in this case became even more evident when the judge
handed down a verdict, which contained:
1)
Declare that the Defendant GAYUS HALOMOAN PARTAHANAN
TAMBUNAN has been proven legally and convincingly guilty of committing the
crime of Corruption which was carried out jointly as in the First Subsidiary
and Second Primary Charges and the Corruption crime as in the Third indictment
as well as providing incorrect information about property suspected of having a
relationship with the Corruption crime as in the Fourth indictment;
2)
Sentenced punishment against the Defendant therefore
with imprisonment for 7 (seven) years and a fine of Rp. 300,000,000. - (three
hundred million rupiahs) provided that if the fine is not paid it is replaced
with imprisonment for 3 (three) months;
3)
Determine the detention period that has been served by
the Defendant wholly deducted from the sentence imposed;
4)
Stipulates that the Defendant remains in detention;
5)
Establish evidence;
6)
Charged the Defendant to pay court fees of Rp.5. 000,
- (five thousand rupiah).
7)
The judge's decision did indeed prove the Defendant
was guilty of corruption, but it became odd when there was no punishment aimed
at recovering state losses. Then efforts to enforce the law of the district
court's decision also did not produce results, because until the Judicial
Review decision No. 38 PK/Pid.Sus/2013, the judge's decision is permanent and
does not change.
8)
Given that the case committed by the Defendant Gaius
Tambunan was tried separately and independently from each of his offenses, then
efforts to enforce the law were contained in the Decision of the Central
Jakarta District Court Number 34/Pid.B/TPK/2011/PN. Jkt.Pst, carried out more
optimally. This can be seen in the prosecution and prosecution of the Public
Prosecutor which is followed by the Judge's Decision. Furthermore, the court
decision which contained the proven guilt of the Defendant for the crime of
corruption and money laundering, was also defended by the Panel of Judges at
the Appeal, Cassation and Judicial Review levels.
If
viewed from Gustav Radbruch's Theory, law enforcement efforts that are just,
beneficial and have legal certainty in this case, the authors state the
following:
a.
That justice in the enforcement of this case has not
been fully realized, because law enforcement against corruption cases
accompanied by various money laundering crimes committed by Gaius Tambunan has
completely damaged the system in the field of taxation, which has led to a mode
of abuse of authority to enrich oneself against the law (illicit enrichment).
Gaius Tambunan's actions should have been given a harsh sentence, apart from
being proven guilty of committing several crimes which were tried at several
court levels, it should be considered that in this case law enforcers only used
imprisonment as the main sanction. What should be, the state through its law
enforcers needs to implement "impoverishment" efforts by confiscating
assets and monetary sanctions in lieu of compensation.
b.
That the goal of legal certainty in this case
encountered real difficulties, because the handling of the Gayus Tambunan case
was marred by obstruction of justice by unscrupulous officials who carried out
selective logging and toyed with the formulation of the indictment in order to
avoid allegations of corruption. Law enforcers have difficulty realizing
essential justice, because there are difficulties in prosecuting tax crimes
that cause state losses, or money laundering by the Defendant.
c.
In terms of punishment, the accumulation of up to 29
years is considered quite heavy, but the state has not been able to meet the
criteria for expediency, because there are still allegations of Gaius
Tambunan's hidden wealth with a potential of Rp. 1.5 trillion which was not
disclosed throughout the law enforcement process in this case.
If
it relates to Richard Posner's Economic analysis of the law theory, then the
search for abnormal wealth should be confirmed by a proportionality calculation
approach where Gaius Tambunan whose rank is still class IIIA, where with that
status, the salary he receives from the Ministry of Finance should be only
around IDR 12.1 million per month or IDR 145.2 million a year. However, it
turned out that Gaius Tambunan could receive incentives of up to Rp. 100
billion or, if calculated from his last salary as a civil servant, the
equivalent of his salary for 688.7 years.
If
viewed from the value of existing state financial losses, law enforcement in
this case also does not function Article 18 of the Corruption Law regarding
replacement money, but only confiscates assets that cannot be proven to have
been obtained through a lawful business by the Defendant. As for the
investigation into the recovery of these assets, at a hearing with the Tax
Mafia Panja and Commission III law at the DPR building, Jakarta, Thursday
24/2/2011, the Chairperson of the Independent Team on the Gaius case, Inspector
General Pol Mathew Salempang, raised that "the state loss of The 19 companies
handled by Gaius amounted to IDR 1.52 trillion.”
So,
it can be judged that the application of follow the money in the decision of
the Central Jakarta District Court Number 34/Pid.B/TPK/2011/PN.Jkt.Pst, up to
the Judicial Review decision, has been implemented properly, but efforts to
disclose other perpetrators, including Gaius Tambunan's wife named Milana
Anggraini should also be made a "participant in committing a crime"
as stipulated in Article 55 paragraph (1) 1st of the Criminal Code in alleged
corruption or passive actors in money laundering as stipulated in Article 5 of
the TPPU Law .
Efforts
to obfuscate through transactions, transfers, purchase of shares and other
banking products from money/assets resulting from criminal acts are the modes
used in money laundering crimes, which are intended so that illicit money
resulting from corruption is not easily detected and disclosed for confiscation
by the state. If the potential loss to the state reaches IDR 1.5 trillion, then
the state's task of recovering lost state finances is not over, because it is
necessary to convert assets that have been confiscated back into money that can
be deposited into the state treasury through an auction process. This is not
necessarily effective, because the decrease in the value of the confiscated
goods could become an obstacle to recovering state losses. Supposedly, the
utilization of FINTRAC's functions in all cases of Gayus Tambunan could be
optimally applied, but only in the last decision which asset tracing was used
in seizing evidence which was stated to be the result of a money laundering
crime.
Follow the
Money Prospects in Returning State Financial Losses Due to Corruption and Money
Laundering
1.
Policy Policy Follow the Money through Financial
Transaction Reports
a.
Suspicious Financial Transaction Reports
FINTRAC functions to analyze Suspicious
Financial Transaction Reports (LTKM) reported by Reporting Parties in
accordance with Article 17 paragraph (1) of the TPPU Law. Financial
Transactions include various types of financial transactions such as
placements, deposits, withdrawals, transfers, transfers, payments, grants,
donations, safekeeping, and/or exchange of sums of money or other actions
and/or activities related to money. Suspicious Financial Transactions begin
with transactions that do not have a clear economic and business purpose, use
relatively large amounts of cash and/or are carried out repeatedly in an
unusual manner, or customer transaction activities are out of the ordinary and
reasonable. Transactions that meet the criteria referred to in Article 1 point
5 of the TPPU Law must be reported as Suspicious Financial Transactions
b.
Report on Suspicious Financial Transactions on
Money Transfers Between Domestic Banks and Foreign Banks
Based on Article 1 Number (6) of the
Money Laundering Law, Cash Financial Transactions are: Financial Transactions
conducted using banknotes and/or coins. Then in Article 25 paragraph (2) of the
TPPU Law, it states that the submission of cash financial transaction reports
by financial service providers to FINTRAC as referred to in Article 23
paragraph (1) letter (b) of the TPPU Law is carried out no later than 14
(fourteen) working days starting from the date the transaction was made. 90 In
cash financial transactions there are several financial transactions that are
exempt from reporting for financial service providers as stipulated in Article
23 Paragraph (4) of the Money Laundering Law. Then Article 24 paragraph (1) and
paragraph (2) of the Money Laundering Law, stated that financial service
providers are required to make and keep a list of transactions that are
excluded as mentioned. Financial service providers who do not make and keep a list
of exempted transactions will be subject to administrative sanctions.
c.
Suspicious Transaction Reports on Goods and
Service Providers
In Article 25 paragraph (3) of the
Money Laundering Law, it is stated that the number of financial transactions of
transfers of funds to and from abroad that must be reported as referred to in
Article 23 Paragraph (1) letter c is regulated by a regulation from the Head of
FINTRAC. Submission
of reports on transactions for transfers of funds to and from abroad as
referred to in Article 23 Paragraph (1) letter c shall be made no later than 14
(fourteen) working days from the date the transaction was made.
d.
Reports of Carrying Cash Suspicious
Bringing cash and other payment
instruments into or outside the Indonesian customs territory is one means of
money laundering. For this reason, the TPPU Law formulates provisions in
Article 34, Article 35, and Article 36.
Policy on the Use of FINTRAC Analysis
Results Reports in Tracing and Disclosing Assets or Suspicious Transactions
Resulting in Money Laundering Crimes
The results of the
implementation of these functions FINTRAC produces 3 (three) outputs, namely:
a.
Analysis Results (HA) are basically outputs in the
form of HA obtained by combining various information from various sources
including both the profile of the reported party, the source of funding, the
purpose of using the funds, the underlying transaction for each transaction
carried out, the suitability between the transaction value and the reported
profile and other matters others deemed necessary to be used as information or
supporting data.
b.
Inspection Results (HP) in general is an in-depth
development of the analysis process. HP can be obtained from the development of
HA or is the handling of reports received by FINTRAC which are deemed necessary to carry
out an inspection in the field considering the urgency, the significance of the
transaction value, the strength of the alleged crime based on initial
information, the impact and other considerations so
that it is deemed necessary to carry out an inspection by FINTRAC.
c.
Information on Analysis Results (IHA), is from an
analysis process with a process like point (1), but the results are in the form
of information submitted to related agencies or institutions that already have
a memorandum of understanding (MoU) with FINTRAC, this is intended as an effort to
prevent ML.
As
for the implementation of FINTRAC's authority in analyzing financial
transactions, it can produce 2 (two) types of Analysis Results Reports (LHA),
namely:
a.
The results of the analysis are submitted to law
enforcement officials. The results of the analysis submitted to law enforcement
officials are the results of the analysis containing instructions regarding the
existence of suspected suspicious financial transactions that indicate money
laundering and/or other criminal acts based on the provisions of Article 44 of
the PPTPPU Law.
b.
The results of the analysis are entered into the FINTRAC database.
From the results of an analysis of suspicious financial transaction reports
received from Financial Service Providers, no indications of specific crimes
have been found, both money laundering and predicate crimes. The results of the
analysis will be stored in the FINTRAC database until information regarding
certain crimes is obtained. All data that is in the FINTRAC database
will assist the next analysis process in terms of having links with the data
that is being or is being analyzed.
FINTRAC's Analysis
Process is carried out by the Directorate of Research and Analysis by utilizing
various existing information sources that are managed internally (self-help) or
other information that can be obtained by FINTRAC through inter-agency collaboration
mechanisms both at home and abroad. FINTRAC analysis results are submitted to
investigators and also submitted to other agencies that have entered into a
memorandum of understanding (MoU) with FINTRAC. The results of the analysis
indicating suspicions of money laundering or other criminal acts will be
submitted to investigators or related agencies that have collaborated with FINTRAC. If no
suspicion of money laundering or other criminal acts has been found, the results
of the analysis will be stored in a database that will assist the next analysis
process. The results of the analysis that do not indicate a suspected crime
will be entered into the FINTRAC database. FINTRAC's analysis
results submitted to investigators were divided into 2 (two), namely: (a.)
Proactive analysis results were results of analysis submitted on FINTRAC's
initiative; (b.) The results of the Inquiry analysis are the results of the
analysis submitted at the request of the Investigator.
So,
the results of the proactive analysis are the results of the analysis submitted
by FINTRAC because their authority is based on law without being based on
requests from investigators, while the results of inquiry analysis are
submitted based on requests from investigators. The forwarding of the Analysis
Result Report is based on the provisions of Article 44 Paragraph (1) letter l
of the PPTPPU Law which is the forwarding of the results of the FINTRAC's initiative
analysis. The forwarding of the results of the analysis is also regulated in
the provisions of Article 64 Paragraph (2) of the PPTPPU Law as follows:
"In the event that indications of money laundering or other criminal acts
are found, the Financial Transaction Reports and Analysis Center (FINTRAC) submits the
results of the examination to investigators to carry out investigation". FINTRAC forwards the
examination results which are the final assessment of the entire process of
problem identification, analysis and evaluation of Suspicious Financial Transactions
which are carried out independently, objectively, and professionally and
submitted to investigators. The results of the inspection are a follow-up to
the results of the analysis if deemed necessary and constitute an in-depth
development of the analysis process by carrying out field checks including in
this case, inter alia, temporary suspension of transactions, as well as making
inquiries of other parties.
The
FINTRAC Analysis
Report is financial intelligence information that is highly confidential and
cannot be given to other parties and can only be used for the purposes of
investigation and investigation in accordance with the provisions of Article 11
to Article 16 of the TPPU Law, the Analysis Result Report contains: 1.) Cases
Position; 2.) Customer Profile; 3.) Analysis Results and; 4.) Conclusion.
Analysis
Result Report, the main product of FINTRAC's analysis process with indications
of money laundering or other criminal acts, is forwarded to investigators
either based on their own initiative (proactive) or at the request of
investigators or law enforcement officials (inquiry), as in Article 48
Paragraph (1) of the Presidential Decree No. 50/2011. Furthermore, the obligation
of investigators to follow up on the analysis results from FINTRAC is regulated
in the provisions of Article 48 Paragraph (3) of Presidential Decree No.
50/2011. In addition, investigators who know, receive reports or complaints
about the occurrence of an event that is reasonably suspected to be a criminal
act must immediately take the necessary investigative action.
FINTRAC Analysis
Results Reports at the KPK are entered through the Public Complaints Sub-sector
which will then be followed up on to the investigation sub-sector and will then
be forwarded to the Enforcement Sector investigation sub-sector as referred to
in Article 26 Paragraph (6) letter b and Paragraph (4) letters a and b of the
Law Number 30 of 2002 concerning the Corruption Eradication Commission. FINTRAC and KPK
cooperate in exchanging information related to the prevention and eradication
of money laundering crimes in following up on the Analysis Results Report
submitted by FINTRAC to the KPK.
That
the KPK and FINTRAC are cooperating in eradicating money laundering
crimes which of course originate from criminal acts of corruption. Apart from
being based on the TPPU Law, this cooperation is also based on a Memorandum of
Understanding (MoU). Such cooperation can take the form of forwarding the
results of an analysis based on the FINTRAC initiative or at the request of the
KPK, as well as cooperation in monitoring people who must be monitored from a
political perspective and apply internationally in the eradication of
money-laundering, such as parliamentary officials, officials from central and
regional government, from agencies. As soon as there are transaction activities
abroad, they are categorized as PEPs (Politically Exposed Persons), so that
overseas banks are obliged to categorize these persons into groups that are
prone to money laundering. Meanwhile, FINTRAC’s collaboration with educational institutions
such as universities is limited to delivering information on the results of an
analysis of suspected money laundering crimes. Educational institutions that
receive delivery of analysis results do not have the authority to conduct
investigations into money laundering crimes because investigative authority is
only given to investigators based on the Money Laundering Law. FINTRAC's
collaboration with educational institutions is based on a Memorandum of Understanding
(MoU). This collaboration takes the form of developing scientific studies in
various fields related to the prevention and eradication of money laundering
crimes through applied research, increasing human resources, organizing
socialization regarding the implementation and development of the anti-money
laundering regime in Indonesia.
Legal System
in Returning Assets Proceeds of Corruption Crimes
About
asset recovery arrangements, the Indonesian government has issued various
regulations that can be used as a basis for the government's efforts to restore
state financial losses as a result of criminal acts of corruption. These
efforts are regulated in: Law No. 31 of 1999 as amended by Law no. 20 of 2001
concerning the Eradication of Corruption (Tipikor Law); UU no. 7 of 2006
concerning Ratification of the United Nations Convention Against Corruption
(Anti-Corruption Convention); UU no. 15 of 2002 as amended by Law no. 25 of
2003 concerning the Crime of Money Laundering (TPPU Law); UU no. 1 of 2006 concerning
Mutual Assistance in Criminal Matters (ASSET, nd) .
In
the Corruption Law, the recovery of state financial losses can be carried out
through 2 (two) legal instruments, namely criminal instruments, and civil
instruments. The criminal instrument was carried out by the investigator by
confiscating the property of the perpetrator which had previously been ruled by
a court with an additional criminal verdict in the form of compensation for
state financial losses by the judge and then the public prosecutor demanded that
it be confiscated by the judge. While civil instruments (through Article 32.
33.34) Law no. 31 of 1999 and Article 38C of Law no. 20 of 2001) which was
carried out by the State Attorney General (JPN) or the agency that was harmed.
Use of FINTRAC
as a Financial Investigator and Forensic Auditor in an Effort to Trace the
Results of Criminal Acts
In
the context of follow the money disclosure of assets that are suspected of
proceeds of crime, it is necessary to have asset tracing which is defined as an
effort to search, trace assets with various efforts so that their whereabouts
can be found, where ownership is identified, researched and the truth
confirmed, so that it can be instructions or references for further legal steps
to be taken so that they can be restored or returned to the state (Ferrante et al., 2021).
1.
Financial Service Provider
Financial Service Providers such as
banks have an obligation to submit suspicious financial transaction reports
(Suspicius transaction reports) and cash financial transactions (Cash
transaction reports) to FINTRAC. This report usually includes details of the
amount transferred, the name of the bank, and the bank account number of the
sender (if the transfer did not come from a cash deposit) and the recipient.
This information is useful for freezing the bank account and further tracing
where the funds flowed from.
2.
Center for Reporting and Analysis of Financial Transactions
(FINTRAC)
FINTRAC also has a good network of
cooperation with similar institutions abroad such as the Financial Intelligence
Service (FIS) in the UK, which is its counterpart and interpol party.
Information from within and outside the country can be used for the purpose of
tracing assets in accordance with laws and regulations on money laundering
crimes, for example by the Corruption Hunt Team.
3.
Research Results from Academics and Non-Governmental
Organizations
Information about hiding assets is
research from NGO organizations that conduct research independently, for
example, the Indonesian Corruption Watch (ICW) Institute, which is a
non-governmental organization that supervises corruption cases in Indonesia.
4.
Disputes/Cases in Court
Information can also be obtained from
disputes that are being tried in courts, both domestic and foreign. Disputes
can occur between families or between companies or organizations that can be
involved, perhaps the disputed property is suspected of originating from a
criminal act.
5.
Corruption Eradication Commission (KPK)
State Officials Wealth Report (LHKPN) submitted
by each state official/administrator to the KPK.
6.
Office of Information Services for the Public
In many countries and various
registration offices, information is open to the public because it is intended
to protect the public interest. For example, in Indonesia, the National Land
Agency (formerly known as Kadastral), Bapepam and the Stock Exchange are
sources of information about companies selling securities in the capital
market.
7.
Leakage of information by insiders.
There is a leak of inside information
that informs about the hiding place of assets from a crime. Usually, insiders
who leak this can be employees where the perpetrators of crimes work, business partners
who feel let down, people who become witnesses or whistle blowers who work with
law enforcement to uncover a crime and hide its assets.
8.
Private Investigator Services
It is undeniable that the services of private
investigators or what are known as private detectives are now increasingly
widespread in Indonesia, even though their legality is still questionable in
our country, but in other countries, the private investigator profession has
been recognized because with their services the whereabouts of criminals and
assets can be traced. - assets hidden abroad without having to wait too long in
the process of tracing assets to facilitate the work of our country's
investigators in resolving a case and being able to recover these assets back
to Indonesia.
CONCLUSION
In the Indonesian
legal system, a follow the money policy is needed to overcome corruption and
money laundering. The perpetrators of corruption always try to eliminate traces
of assets obtained illegally through money laundering practices. Currently,
there are several policies and laws and regulations related to eradicating
criminal acts of corruption and money laundering, but asset recovery is still
not optimal. Therefore, the Bill on Asset Recovery and the Bill on Cash
Payments which are oriented towards follow the money as well as affirming the
application of Articles 18 and 37 of the Corruption Law are needed to
confiscate the proceeds of crime through criminal compensation.
The policy
direction of future laws and regulations in accommodating follow the money in
law enforcement against criminal acts of corruption with the aim of returning
state financial losses can be strengthened by: (1) strengthening the system for
returning assets resulting from acts of corruption with the Asset Recovery
Bill; (2) Increase the capacity of FINTRAC to become a crime investigator or
Financial Audit Forensic, and make the Analysis Results Report (LHA) as
evidence in the process of investigation, investigation and prosecution; (3)
Strengthening asset confiscation through Conviction based forfeiture and Non
conviction based forfeiture, as well as civil lawsuits; (4) Strengthening
cooperation between countries to track assets resulting from crimes abroad and
maximize returns.
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