THE INDONESIAN PERSPECTIVE ON CONTEMPORARY
MEASURES FOR EFFECTIVE INTERNATIONAL COOPERATION
Ms. Mahayu Dian Suryandari*
Ms. Ipat Fatmawati†

I.

INTRODUCTION

Cooperation among law enforcement officials in handling and settlement of crimes is
extremely essential, particularly for cases which involve foreign jurisdictions. It has been
globally recognized that international cooperation is the tool to address the scourge of crime
as a global problem. 1 However, issues regarding legal traditions that influence lawyers,
including justice sectors and those who are involved in creating national legislation, havebecome challenges to build effective international cooperation among countries.
The Indonesian government has recognized the need of using international cooperationin fighting crime since the 1970s. Treaties on extradition were made by the Indonesian
Government in the era based on the Koninklijk Besluit (Staatsblad 1883 -188) – legislationthat was enacted during the Dutch colonization of Indonesia. Then in 1979, Indonesia issued
its National legislation on Extradition (Law No.1/1979) as the legal framework for requests
and treaties of extradition.
After ratifying UNCAC, which, among others, encourages countries to apply
mechanisms of mutual legal assistance as a formal model of legal cooperation in criminal
matters to obtain overseas evidence, the Indonesian government issued the Law on Mutual
Legal Assistance in Criminal Matters (Law No.1/2006). Both pieces of legislation are now inthe process of being amended to better accommodate the complexity of cooperation between
Indonesia and the relevant foreign jurisdictions.
Apart from Government to Government or formal mechanisms of cooperation,
Indonesian law enforcement has also been employed non-formal or agency to agency
cooperation in handling criminal cases. There have been a number of practices of such nonformal cooperation that have been fruitfully applied, both for general crimes (read: noncorruption crimes) and for corruption offences. However, in any event of legal cooperation incriminal matters, law enforcement must keep in mind that successful prosecution and/or
affected justice order is the main objective. Thus, building a competent analysis andconsideration of both parties’ domestic laws must have become the initial step taken.
Besides describing the measures of formal international cooperation applied inIndonesia, this paper will discuss the legal consideration given by prosecutors as the*

Coordinator of Prosecutors at the High Public Prosecution Office of Bali Province, Indonesia.
Prosecutor for the Anti Corruption Task Force of the Attorney General’s Office, Indonesia.
1
Secretary General Kofi Annan, foreword to United Nations Convention against Transnational Organized
Crime and the Protocols Thereto (New York, United Nations, 2004 from the Manual on Mutual Legal
Assistance and Extradition, UNODC, 2012, p. 1)†

‘guardians’ of the nation’s law, which should have built confidence for enforcement agents totake alternative measures of foreign cooperation. Thus, prosecutors’ roles should beprescribed in the earliest process of international cooperation.
II.

NATIONAL MEASURES ON INTERNATIONAL COOPERATION:MECHANISM AND PROCEDURESA.

Law on Extradition
As mentioned above, the first formal mechanism of international cooperation incriminal matters that will be discussed is extradition. Its mechanism and procedures areprovided by the Indonesian Law number 1 year 1979 (Law 1/1979) on Extradition. Article 2of the Law 1/1979 underlines the Indonesian government commitment to process extradition
requests from countries which either have a bilateral extradition treaty with Indonesia (treaty
countries) or from those without a bilateral extradition treaty with Indonesia (non-treaty
countries). Requests from the later country shall be followed up based on a positive bilateralrelationship with reciprocity and the Government’s concern principle. This dualism (offacilitating treaty and non-treaty countries) has encouraged more extradition requests toIndonesia.
Any request of extradition must be submitted in writing directly to the Ministry ofJustice or through diplomatic channels. There are several principles that serve as grounds forrefusal, which shall be pre-examined at the first stage of submission, i.e., political and/or
military crimes of Indonesian nationals, offences that occur in Indonesia’s jurisdiction, theperson sought is needed for Indonesian court, double jeopardy, lapse of time, death sentence,ethnicity, religion, race related offences/allegations, the person sought is subject toIndonesian prosecution for other offences. Requests for extradition shall also be refused if therequested fugitive is to be given up to a third country for crimes committed before therequest.2
As for the dual criminality principle, Indonesia requires that any of the offences belisted on the supplementary sheet of the Law 1/1979 as extraditable offences. The list consistsof 32 offences. Among others, it includes corruption, fraud, burglary, false documents, andembezzlement. These extraditable offences can also be expanded to other offences outside
the list, as long as such offences have been criminalized in Indonesia (Article 4:2). The ‘open
clause’ maintained by this provision has become very positive to catch up with crime
development from time to time. This ‘opportunity’, however, leaves the law enforcement andjustice sectors to scrutinize whether the principles of dual criminality are satisfied.
B.

Law on Mutual Legal Assistance
Secondly, mutual legal assistance in criminal matters (MLA) is the other formal
mechanism of international cooperation provided by the Indonesian Law number 1 year 2006
(Law 1/2006) to enable law enforcement to obtain evidence from the relevant jurisdiction forthe purpose of investigation or prosecution. Assistance such as identifying and locating
persons, taking evidence or statements from persons, effecting service of judicial documents
or court order, or executing searches and seizures of items or assets related to crime are thosethat can be facilitated by the Indonesian government according to the Law 1/2006.

2

Article 4 to Article 17 of the Law No. 1/ 1979 concerning Extradition.

Similar to the commitment shared for extradition, the Indonesian government will not
only facilitate requests from countries with MLA bilateral treaties, but also from countries
without binding treaties with Indonesia. However, an MLA request shall be refused when theassistance requested is related to political or military offences, national/public interest
concern, double jeopardy, non-prosecutable offences, failure to give assurance to prosecute,
as well as failure to assure the return of requested evidence.
III.

NATIONAL MEASURES SUPPORTING UNCAC IMPLEMENTATIONThe Indonesian government ratified the United Nations Convention Against Corruption(UNCAC) on 18 April 2006. It soon entered into force by the stipulation of the Law
No.7/2006 on Ratification of the UNCAC. Accordingly, there are some distinguishedapproaches adopted in line with the Convention, such as joint investigation (Article 49 of theConvention), special investigative techniques (Article 50 of the Convention), and measureson asset recovery (Article 51 of the Convention).
With regard to the spirit of compliance with the Convention, the Indonesian Asset
Recovery Centre (ARC) was initiated in the Indonesian Attorney General’s Office. This
centre aims to work together with law enforcement, as early as the investigation process until
a criminal proceeding is initiated concerning the tracing, securing, forfeiting, maintaining andrecovery of the proceeds of crime. In its operation, the ARC also develops cooperation withinternational networks, such as the Asset Recovery Inter-agency Network Asia Pacific(ARIN-AP), CARIN, and the Stolen Asset Recovery Network (StAR).
IV.

INTERNATIONAL COOPERATION PRACTICES IN CORRUPTION CASES

Corruption is classified as one of the major criminal cases in Indonesia. The corrupt
conduct based on the Indonesian Anti-Corruption law may include fraud, abuse of public
office and/or bribery. 3 Thus, in fighting corruption, the Attorney General’s Office of the
Republic of Indonesia (the AGO) and the Corruption Eradication Commission (KPK), which
both have authority to conduct investigation and prosecution, engage in significant efforts tobattle the crime. Such efforts have included some extraordinary approaches such as
maintaining legal cooperation with the international community.
Based on Law No.16/2004 on the Indonesian Attorney General, the office has its duties
and authorities from conducting pre-investigation and investigation of certain crimes as
governed by law, such as corruption, money laundering (in which corruption is a predicate
crime), or crimes against humanity, prosecution of all crimes, as well as execution to thecourt orders. It also conducts judicial intelligence activities and provides intelligence service
for the state in coordination with the primary intelligence agency—the Indonesian StateIntelligence Agency.

3

Corruption in the Law number 31/1999 as amended by the Law no.20/2001 defines as: “…an act to enrichhimself or another person or a corporation which may cause loss to the state finance or state
economy…”(Article 2), or “…intentionally earning profit for himself or another person or a corporation,
abuses the authority, opportunity, or facilities given to him on account of his post or position which may cause
loss to the state finance or state economy…”(Article 3), also “giving presents or promises to a Government
employee in relation to the power or authority vested in the post or position or by giving gifts or promises
considered as vested in the post or position…”(Article 13).

Meanwhile, the Corruption Eradication Commission (KPK) was established toinvestigate and prosecute4 certain types of corruption crime, i.e., those which involve law
enforcement, public officials, and other persons related to crimes of corruption committed bylaw enforcement or public officials; cases of corruption which attract and disturb the public;
and/or cases in which corruption involves a minimum of a Rp.1 billion (approx.
US$ 100,000) state loss.
For the AGO, besides handling its own investigation and prosecution derived from anationwide scope of cases by the Special Task Force of Anti Corruption of the AGO, thisoffice administers 31 provincial-level prosecution offices, 419 district public prosecution
offices and 65 branches of district public prosecution offices all over the Indonesianarchipelago. Data shows that for the past 3 years, the office has been dealing with not lessthan 1,500 investigations and 2,000 prosecutions of corruption cases per-year.
In international fora, the AGO Indonesia has become a member of various types ofprosecutors’ international organizations, such as the International Association of Prosecutors(IAP) and the forum of China-ASEAN Prosecutor Generals. Also, it actively contributes tothe International Association of Anti-Corruption Authorities (IAACA) as an international
forum aiming specifically to share commitments among member states to fight corruption. As
for the prosecutor to prosecutor cooperation framework, the AGO Indonesia has signed
memoranda of understanding in legal cooperation with the Supreme Prosecution Offices or
Departments of Justice of many neighboring countries, such as: the AGC of Malaysia, theAGO of Thailand, the SPP of Korea, the SPP of China, the AGO of the Russian Federation,
the Department of Justice of the United States, as well as the AGO of the Netherlands. But, tosustain the Government commitment in bringing corruption perpetrators to justice,cooperation with foreign jurisdictions, as well as cooperation with all domestic relevant
stakeholders, should always be seen as a way of thinking and working.
In this sense, any tools of cooperation that offer efficiency and effectiveness in terms of
the least time spent and reasonable execution costs would be much preferable. For thatreason, there have been many practices in Indonesia where speed is of the utmost
consideration to decide what mechanism to choose. This has almost always been the case, inparticular with regard to returning criminals from overseas.
A.

International Cooperation in Surrendering Fugitives of Corruption: Extradition
and Non-Extradition Schemes
The only example of surrender by extradition is the Kiky Adrian Ariawan case. He wasa convict of the Indonesia Bank liquidity support (BLBI) case who was found guilty andsentenced by the Central Jakarta Court in absentia in November 2002. He was sought by theAGO Indonesia since 2005. On 28 November 2008, the Indonesian Government made aformal request of extradition to the Australian Government after finding out that the soughtafter person was residing in Perth. After the appeals process exhausted, Kiky Adrian Ariawan
was finally extradited to Indonesia in January 2014.

4

The Law does not allow KPK to recruit an independent prosecutor, and thus Prosecutors who work for KPK
are those that are seconded from the AGO.

On the other hand, there were many instances of alternative exercises in surrendering of
fugitives for corruption cases by the AGO Indonesia, i.e., Sherny Kojongian5, Totok Ary
Prabowo 6 and Samadikun Hartono 7 . The main reason was mostly because of legislative
impediments. In the above examples, the legal issue was that each requested country, i.e., theUnited States, Cambodia and Singapore, are treaty-based countries, 8 which meant it was
impracticable for Indonesia who has no extradition treaty with any of those requested
countries to apply the extradition scheme. Then, based on good relationships andunderstanding between countries involved and excellent national inter-agency cooperation, an
informal mechanism was finally agreed to be executed, of course, because it was legallyadmissible for both parties.
The other exercise of informal channels to achieve the return of suspects of corruption
crime is by using police to police cooperation. Some examples of the said exercise were thearrest of Nazaruddin 9 from Columbia, Nunun Nurbaeti 10 from Thailand, and La Nyalla
Mattalitti11 from Singapore. Diffusion from Interpol was sent for the three suspects. In thesecases, the non-formal mechanism of surrender was immediately taken for each suspect, once
information received by the Indonesian law enforcement authority from each country where
they resided. Again, such an exercise saved time. However, pre-consultation with prosecutors
who were in charge of the cases prior to the execution date, had apparently become asignificant step taken.
B.

International Practices in Obtaining Evidence
In exercising MLA, where overseas evidence is the subject of requests for legal
assistance to carry out either investigation or prosecution of corruption cases, the AGO andKPK have also applied formal and informal mechanisms of obtaining evidence. Last year, theKPK was also moving forward to use the MLA scheme to identify, freeze, seize andconfiscate the proceeds of corruption.
From the practices either in extradition or MLA, we learned that understanding theforeign legal traditions and systems is basic knowledge for the country’s decision makers
before making any requests. Law enforcement must also bear in mind that although the5

Sherny Kojongian is an AGO defendant of corruption at the Indonesia Bank liquidity support (BLBI) case. She
ran away from the court proceeding in 2002. In March 2002, the Central Jakarta Court found her guilty andput her into 20 years of imprisonment with in absentia hearing. The corrupt conduct caused Rp.1.95 trillion(US$190 million). She was deported by the United States’ immigration authority to Indonesia in June 2012.
6
Totok Ary Prabowo is an AGO convict of two corruption cases in public sector: mis-use of local government
budget worth Rp.1,8 billion and fraud in general election worth Rp.2,3 billion. He was sought by the executor
from the AGO since 2010, then was apprehended on 8 December 2015, in Cambodia by luring mechanism.
7
Samadikun Hartono is an AGO convict of corruption at the Indonesia Bank liquidity support (BLBI) caseworth Rp.2.5 trillion (US$ 250 million). He was sentenced by the court of cassation (the Indonesian Supreme
Court) in 2003, but this court verdict was unable to be executed for he ran away. Samadikun Hartono was
finally detained in April 2016 in Shanghai, China, and returned to Indonesia through deportation scheme.
8
Treaty based country means country that can only cooperate with any country which sign affected extradition
treaty with it.
9
Nazaruddin, a KPK suspect of corruption cases for bribery at the Ministry of Youth and Sport, had been sought
since May 2011 and was apprehended in August 2011 in Cartagena, Columbia. He was deported by the
Columbian Police.
10
Nunun Nurbaeti is a KPK suspect of corruption case for fraud/bribery at the election of Deputy of IndonesianCentral Bank, fugitive since February 2011. She was apprehended in December 2011 by KPK using luring
mechanism in Bangkok, Thailand.
11
La Nyala Mattalitti is an AGO suspect of corruption cases who was sought since March 17, 2016 and deported
from Singapore on 31 May 2016.

requests were sent at the stage of investigation, the ultimate goal of the whole process is toascertain the guilt or innocence of the accused person.
In other transnational crime cases, such as terrorism, people smuggling, or trafficking inpersons, the AGO Indonesia has also applied successful informal cooperation with its
counterparts. For instance, in UMAR PATEK case—one of the major perpetrators of the Bali
Bombing who was prosecuted in 2013, prosecutors of the AGO Indonesia managed toconvince the panel Judges in admitting the voluntary presence of 3 (three) foreign victims
who arrived from Australia and the United States to deliver their testimony before the court.
In the trial proceeding, prosecutors also presented a factual witness from the United States
who testified to his knowledge of the defendant’s involvement in Camp Moro in thePhilippines. Those witnesses appeared before the court without formal MLA requests.
Another example of informal cooperation in obtaining evidence for court proceedings
was conducted at a session of prosecution in a people smuggling case by the AGO. At thattime, in cooperation with the Australian authorities, victims of people smuggling from theAustralian detention centre for illegal migrants on Christmas Island were brought before theIndonesian panel of judges to deliver their testimony against the defendant.
Both cases of terrorism and people smuggling have become models of successful
practices by the AGO Indonesia in maintaining good legal cooperation in criminal matterswith its foreign counterparts. At the same time, such models of cooperation confirm thatprosecutors’ recommendations for cooperation taken at the initial step are worth all theefforts put in by both countries.
V.

CONCLUSION

Finally, in striving for effective legal cooperation in criminal matters, satisfaction of thedomestic legal requirements should be placed as the top priority. An alternative mechanism
could have been anticipated earlier, when we wish to save time, if the government attorneys,i.e., the prosecutors responsible to uphold the domestic law, are involved at the earliest pointin the decision-making process. They should give initial legal input, which at least consists of
the admissibility of evidence in court, on the alternative mechanisms to be taken, theprinciple of dual criminality, as well as other expected legal questions regarding the request.
In the end, flexibility in engaging in foreign cooperation would be the expected solution
to achieve efficient country to country cooperation. But decisions on when or whether toexercise alternative mechanisms must be made on a case-by-case basis, and in light of thefact that such actions might have been ruled as illegal in some jurisdiction and, thus, theyshould be scrutinized with great prudence. For this reason, after maintaining goodcommunication with foreign counterparts to understand their legal traditions, the next
important step in the process is to make a competent decision about the technicalities. Here,legal advice from prosecutors as the Government attorneys must be relied on because of theircompetent skills and experience in court.
REFERENCES:
 The Law Number 1/1979 on Extradition; The Law Number 1/2006 on Mutual Legal Assistance in Criminal Matters;
 UNODC, Manual on Mutual Legal Assistance and Extradition, 2012.