INTERNATIONAL COOPERATION:
BUILDING TRUST, OVERCOMING DIFFERENCES
Adnan Pandu Praja*

I. INTRODUCTION
Distinguished Participants of the Sixth Regional Seminar on Good Governance forSoutheast Asian Countries. It is our great pleasure to have this opportunity to speak at thisseminar on behalf of KPK — the Corruption Eradication Commission of the Republic ofIndonesia.

II. CORRUPTION IS A TRANSNATIONAL CRIME•

The main theme of this seminar is “International Cooperation: Mutual Legal Assistanceand Extradition,” which is directly related to our daily activities in combating corruption.

•

As we all know, corruption is a global, ethical and legal issue. Countries are now facing
growing cross-border chains of corrupt activities and the flow of proceeds of corruption
between jurisdictions.

•

Criminals and the proceeds of crime cross borders easily. Increasingly, there is a need forinternational cooperation to gather evidence, apprehend fugitives and to recover theproceeds of corruption.

•

International cooperation, especially in the areas of mutual legal assistance, extradition
and the recovery of proceeds of corruption, is, therefore, becoming more and more
important.
III. INTERNATIONAL LEGAL COOPERATION•Firstly, multilateral and bilateral treaties between countries still represent the most formal
vehicles that can be used in international legal cooperation. Theses treaties should build
trust and overcome differences in our legal systems.

•

On the other hand, since it was adopted and entered into force, the United Nations
Convention Against Corruption (UNCAC) has provided us with the primary internationalframework for cooperation.

•

We are fully aware that many countries have well-established systems for international
cooperation and have ratified UNCAC and the OECD Convention on the Bribery ofForeign Public Officials. Many countries have also made major investments in theinfrastructure required to detect, investigate and confiscate the proceeds of crime.

*

Commissioner, KPK Republic of Indonesia.

- 56 -Despite important progress over the last years, international cooperation against
corruption is still in an early, but promising, stage of development.
•

We also understand that to obtain assistance and cooperation, law enforcement must still
rely on the goodwill of foreign states, even in the presence of treaties and agreements.
No matter how involved the treaties or agreements between two states are, mutual legal
assistance is still a matter of asking another state for help.
IV. DIFFERENT LEGAL SYSTEMS•One of the most challenging issues in conducting international legal cooperation is thedifferent legal systems between countries.

•

We should stress the importance of making the effort to learn about the legal traditions of
the requested or requesting state.

•

It is important to learn by understanding the legal systems within which the requested
and requesting states are working. The domestic legislation of each state is instructive,and early efforts to understand these systems and their methods will pay dividends, notonly with the case at hand but also for every case in the future.

•

I believe we should speak with the central authorities. They are the national experts inthe field of international assistance. By making use of their knowledge, trust andenhanced cooperation will follow.

•

However, miscommunication and the problems it creates are founded inmisunderstanding. The greater problem often is not the differences in legal systems but
missunderstanding about those differences.
V. INFORMAL ARRANGEMENTS•

Based on the KPK's experiences, we learned that in some practical areas, informal
agency-to-agency arrangements were considered as important complimentary measures.

•

Arrangements were conducted through bilateral agency-to-agency or Interpol
cooperation mechanisms, including cooperation between Financial Inteligence Units(FIUs).

•

Agency-to-agency cooperation is very beneficial to obtain information from foreigncounterparts to collect non-sensitive records or preliminary data.

•

It is also useful as a bridging approach in dealing with formal legal cooperation (noncoercieve measures).

•In the case of mutual legal assistance, consideration should be given to whether current
goals can be achieved through agency-to-agency cooperation or whether the
documentation required is in the public domain of the requested state and is therefore
something that does not require mutual legal assistance. Normally, the less coercive arequest, the more likely it can be achieved without having to resort to a formal request
which, no matter how efficient a system is in place, will take more time than an informal- 57 -

request.
•

Knowing when to initiate formal requests is just as important as knowing how to initiate
them.
VI. KPK'S EXPERIENCES IN THE AREA OF INTERNATIONAL COOPERATION•

Let me share KPK's experiences in area of international cooperation. KPK via theIndonesia Central Authority has been conducting several MLAs (requesting andrequested) with the USA, the UK, Japan, Singapore, Hong Kong, Malaysia, Brunei
Darusallam, Australia, and others.

•

KPK also has good working relationships with many foreign agencies, such as the FBI(USA), SFO (UK), ICAC (HK), MACC (Malaysia), CPIB (Singapore), etc. We are also
actively involved in many anti-corruption forums, such as IAACA, G20 ACWG, APEC
ACT, SEA-PAC, World Bank ACHN, etc.

•

An example of one of our cases is the repatriation of MN, a high-profile Parliament
Member of Indonesia. After about 6 months as a fugivite, he was arrested in Cartagena,
Colombia on August 7, 2011. The operation was supported by approximately 15
jurisdictions in the form of formal and informal legal cooperation, including MLA. The
operation was supported by INTERPOL as well as authorities and anti-corruption agency
networks in Colombia, China, Cambodia, Hong Kong, Laos, Malaysia, Maldives,
Singapore, the USA, Vietnam, Venezuela and others•

Another milestone for Indonesia in international cooperation is in the area of UNCAC
implementation review. Indonesia completed its UNCAC implementation review on
Chapters 3 and 4 in May 2012.
VII. CONCLUSION

1.

To move forward in the implementation of international legal cooperation, we would
suggest that the following steps be taken: 1. promote UNCAC, particularly the use ofprovisions related to extradition, MLA and asset recovery; 2. strengthen
multilateral/bilateral treaties and agency-to-agency cooperation to gain better
understandings; 3. enhance capacity building; 4. improved domestic cooperation (multiagency teams).

2.

To sum up, as crime and criminals continue to have less respect for internationalboundaries, effective international cooperation becomes more vital. Concurrently, those
involved in practice will be required to become familiar with international legal practice,both theoretical and practical. Our criminal justice systems must continue to discover,collate, and absorb the rules, policies and practices of their partners in the international
community. Without joint effort, our fight against crime will be less effective. Let us
build trust and overcome differences

3.

Ladies and gentlemen, thank you for your attention.

- 58 -

INTERNATIONAL COOPERATION IN THE REPUBLIC OF
INDONESIA: MUTUAL LEGAL ASSISTANCE AND EXTRADITION
Abeh Intano*

I. INTRODUCTION
There are around 3 million citizens from the Republic of Indonesia who are living inforeign countries, and around 1 million people from the Republic of Indonesia travel
regularly to foreign countries for various business purposes. Also there are around 46,000
foreign citizens living in Indonesia for various business purposes, and there are 750,000
tourists visiting Indonesia (based on 2011 statistics from the Center Statistic Bureau
Indonesia). In this condition, the Government of the Republic of Indonesia believes that there
is a possible situation related to the criminal aspect which could appear in trans-borderactivity by the citizens. Offences involving trans-border activity could be ordinary crimes orserious and organized crime.
Efforts to prevent and combat trans-border crime require cooperation and mutual support
for the work of law enforcement authorities in all countries and/or jurisdictions; however,each law enforcement authority is limited in that they only work in their own jurisdictions
and lack the capability to reach other jurisdictions based on principles of sovereignty.
In support of the law enforcement effort to prevent and combat trans-border offences, thebroadest possible measures of cooperation need to be formulated. The government of the
Republic of Indonesia supports all mechanisms of cooperation including:•

Informal cooperation between law enforcement agencies;•

Formal cooperation between governments.

All cooperation is designated to support the work of law enforcement throughout theirinvestigation, prosecution, and execution of the judgment for the offence(s) which wereconducted by the criminal offenders in foreign jurisdictions. In this regard, Indonesia needs to
explore the international best practices in the implementation of formal cooperation throughmutual legal assistance in criminal matters and extradition of fugitive offenders.
The government of the Republic Indonesia has enacted national legislation on mutual
legal assistance and extradition. For mutual legal assistance, Indonesia has legislation which
regulates the principles, guidance, and proceedings in handling mutual legal assistance in*

Deputy Director for Central Authority Unit, Directorate of International Law and Central Authority,
Directorate General of Legal Administrative Affairs, Ministry of Law and Human Rights, Republic of Indonesia.

- 59 -

criminal matters through Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in
Criminal Matters. For the extradition of fugitive offenders, Indonesia has legislation which
regulates the principles, guidance, and proceedings in handling extradition throughIndonesian Act Number 1 Year 1979 on Extradition.
In the Republic of Indonesia cooperation is required in the support of the law
enforcement work to prevent and combat trans-border crime, which concerns obtaining
evidence, proceeds of crime, and also the surrender the fugitive offenders, through mutual
legal assistance and extradition, based on the following circumstances:
1. Evidence should be admissible for use by law enforcement and judicial authorities in the
Requesting Countries’ jurisdictions;2.

If there is a legitimate order from the judicial authority for obtaining evidence which isregulated under criminal procedure legislation;

3.

Assurance of the protection of third parties (related to the proceeds of crime);

4.

Ensuring due process of law for the surrender of fugitives (Human Rights aspect);5.

If there is consideration for conditions of reciprocity.

The Republic of Indonesia has become a Party to 3 (three) essential Conventions of theUnited Nations:1.

United Nations Conventions against Illicit Traffic in Narcotic Drugs and Psychotropic
Substances 1988, which was ratified by Indonesia in 1997 by Act Number 7 Year 1997;

2.

United Nations Convention against Corruption 2003, ratified by Indonesia in 2006 by
Act Number 7 Year 2006;3.

United Nations Convention against Transnational Organized Crime 2000 (UNTOC),
ratified by Indonesia in 2009 by Act Number 5 Year 2009.

As a party
party totoUnitedthese United
conventions,appliesthem to covenant
combatting
Nation Nations
conventions,
IndonesiaIndonesia
applied theinternationalascriminals,
as othercriminalinternational
principles
national law.
one
based asforwell
combatting
as wellas otherandinternational
principles and national law.
II. MUTUAL LEGAL ASSISTANCE
Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters is
specifically for assistance related to criminal investigations, prosecutions and examinations
before the court in accordance with domestic laws and regulations of the Requested State.
This means that assistance covered in this legislation is only related to assistance in criminal
matters and does not include assistance related to civil or commercial matters. Provisions ofIndonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters do not
apply to the extradition or surrender of any person, the arrest or detention of any person witha view to the extradition or surrender, the transfer of persons in custody to serve sentences, orthe transfer of proceedings in criminal matters. Indonesian Act Number 1 Year 2006 on
Mutual Legal Assistance in Criminal Matters stipulates Mandatory and Discretionary
Grounds for Refusal of the Assistance as stated in Articles 6 and 7 of the Mutual Legal- 60 -

Assistance Act 2006 (Statute of Limitation).
Mandatory grounds for refusal of mutual legal assistance as stipulated in Article 6
Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters are:1.

if the request for Assistance relates to the investigation, prosecution or examination
before the court or punishment of a person for the crime that is of a political nature,
except a crime or attempted crime against the life or person of a Head of State/a Head ofCentral Government, or terrorism;2.

if the request for Assistance relates to the investigation, prosecution or examination
before the court or punishment of a person for the crime under military law;3.

if the request for Assistance relates to the investigation, prosecution or examination
before the court of a person for a crime, the perpetrator of which has been acquitted,
awarded clemency, of has completed serving the criminal sanction;

4.

if the request for Assistance relates to the investigation, prosecution or examination
before the court of a person for a crime which, if committed in Indonesia, cannot be
prosecuted;

5.

if the request for Assistance is for prosecuting or bringing a person to justice based on a
person’s race, gender, religion, nationality, or political beliefs;

6.

if an approval for providing the Assistance requested will be harmful to the sovereignty,
security, interests, or national law;

7.

if the foreign state cannot assure that the items requested will not be used for a matterother than the criminal matter in respect to which the request was made;8.

if the foreign state cannot assure that it will return, upon request, any item obtained
pursuant to the request.

Discretionary grounds for refusal in mutual legal assistance as regulated in Article 7
Indonesian Act Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters are:1.

if the request for Assistance relates to the investigation, prosecution, and examination
before the court or punishment of a person for a crime that, if said crime were committed
within the territory of the Republic of Indonesia, is not a crime;

2.

if the request for Assistance relates to the investigation, prosecution, and examination
before the court or punishment of a person for a crime that, if said crime were committed
outside the territory of the Republic of Indonesia, is not a crime;

3.

if the request for Assistance relates to the investigation, prosecution and examination
before the court or punishment of a person for a crime that is subject to capital
punishment;

4.

if an approval for providing Assistance upon said request will be harmful to theinvestigation, prosecution or examination before the court in Indonesia, endanger the- 61 -

safety of the person, or burden the assets of the state.
In support of the work of assistance under Indonesian Act Number 1 Year 2006 on
Mutual Legal Assistance in Criminal Matters and as mandated in the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, theUnited Nations Convention against Corruption 2003, and the United Nations Convention
against Transnational Organized Crime 2000 (UNTOC), the Republic of Indonesia has
designated the Minister of Law and Human Rights of the Republic of Indonesia as the central
authority for handling cooperation on mutual legal assistance. For the next stage, the Ministerof Law and Human Rights of the Republic of Indonesia as the central authority establishedthe central authority unit under the Ministry of Law and Human Rights, which is the Mutual
Legal Assistance Section at the Directorate of International Law and Central Authority, andwhich handles all technical aspects in the mutual legal assistance role.
The main duties in the Mutual Legal Assistance Section at the Directorate ofInternational Law and Central Authority are:1.

Analyzing the Information and Evidence in the Request Document for satisfaction of therequirements under the Indonesian MLA Act and Indonesian Criminal Procedure Code(before determining whether the request(s) could be granted or not);2.

Immediately consult or communicate with the Requesting Country if there are any
additional documents or information needed to execute the request(s);3.

Designate the Competent Case Officer (who the authority in the Requesting Country cancontact directly for gathering information on the process);

4.

Consultation with Law Enforcement Authorities, which have authority to execute theassistance request;

5.

Make sure that the evidence (or others) obtained is admissible under the law of theRequesting Country.

6.

Drafting the Request Document(s), if Indonesia becomes a Requesting Country.

The type of assistance that could be given to foreign jurisdictions under Indonesian Act
Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters are:1.

Identifying and locating persons;2.

Obtaining witness statements (written or other forms thereof);

3.

Providing evidentiary documents (written or other forms thereof);

4.

Making arrangements for persons to provide statements in the Requested Country or toassist in the investigation;

5.

Service of Documents;

6.

Providing assistance related to searches by production warrant and also for seizing the- 62 -

evidence;
7.

Forfeiture of the proceeds of crime;

8.

Recovery of pecuniary penalties in respect to the crime;

9.

The restraining of dealings in property, the freezing of property that may be recovered orconfiscated, or that may be needed to satisfy pecuniary penalties imposed, in respect of
the crime;

10. Locating property that may be recovered, or may be needed to satisfy pecuniary penalties
imposed, in respect to the crime;
11. Other assistance in accordance with the Indonesian criminal procedure code.
Assistance request(s) also provide for using the UN Conventions to which Indonesia (andthe Requesting Country) are parties. In this matter the Requesting Country does not necessaryneed to obtain the specific reciprocity assurance, and the Requesting Country should be a
Party to the UN Conventions and should have ratified the conventions without taking
Reservations in the chapters or articles on international cooperation (mutual legal assistance).
For assistance related to recovery of assets relating to the proceeds of crime throughmutual legal assistance under Indonesian Act Number 1 Year 2006 on Mutual Legal
Assistance in Criminal Matters, there are the following conditions:
1.

Assistance requests shall be conviction based. However, at the present Indonesia is in theprocess of passing legislation which could implement a non-conviction-based-forfeiture
regime;2.

Assets should be related to the crimes (including proceeds of crime and/or are
instrumentalities of the crimes);

3.

The Confiscation Order from the Court in the Requesting Country is needed;

4.

Asset Sharing: not regulated in the Indonesian MLA Act 2006, if there are costs, thesecosts should be further discussed with the Requesting Country during the process (i.e. if
the assets needed to be put into special retention entities).
III. EXTRADITION

In support of the work of assistance under Indonesian Act Number 1 Year 2006 on
Mutual Legal Assistance in Criminal Matters and as mandated in the United Nations
Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1988, theUnited Nations Convention against Corruption 2003, and the United Nations Convention
against Transnational Organized Crime 2000 (UNTOC), the Republic of Indonesia has
designated the Minister of Law and Human Rights of the Republic of Indonesia as theCentral Authority for handling cooperation on extradition. For the next stage, the Minister of
Law and Human Rights of the Republic of Indonesia as the central authority established thecentral authority unit under the Ministry of Law and Human Rights, which is the Extradition
Section at the Directorate of International Law and Central Authority, and which handles all- 63 -

technical aspects of extradition.
The important principles regarding the implementation of extradition by the governmentof the Republic of Indonesia are:1.

Extradition of the fugitive where the fugitive offenders are suspected criminal offenders
and are needed for prosecution as well as where the fugitive offenders are convictedcriminal offenders and are needed for enforcement of imprisonment upon the sentencing
by the court;

2.

Recognizing the extradition of the fugitive by the bilateral treaty, convention (to which
Indonesia and the Requesting Country are parties), and also could be considered in theabsence of treaty or conventions (based on the assurances of reciprocity);

3.

There are mandatory requirements for submitting the extradition request throughdiplomatic channels (diffrent from mutual legal assistance that could be using directchannels from central authority to central authority);

4.

Indonesia has discretion to extradite its own nationals. Extradition of Indonesian citizens
could be granted if in view of the circumstances by the President of the Republic ofIndonesia, it would be better if the person concerned be tried at the place of commissionof the crime;

5.

Mandatory principle on dual criminality of the conduct.

To support the work of cooperation through extradition, as of 2012 Indonesia hasbilateral treaties with:a.

Malaysia (signed 7 January 1974) and has been ratified;b.

Philippines (signed 10 February 1976) and has been ratified;c.

Thailand (signed 29 June 1978) and has been ratified;d.

Australia (signed 22 April 1992) and has been ratified;e.

Hong Kong (signed 5 May 1997) and has been ratified;f.

Republic of Korea (signed 28 November 2000) and has been ratified;g.

Singapore (signed 27 April 2007) and not yet ratified, refer to the parliament schedule;h.

People’s Republic of China (signed 2 July 2009) and not yet ratified, refer to theparliament schedule;i.

India (signed 25 January 2011) and not yet ratified, refer to the parliament schedule;j.

United Arab Emirates (scheduled for signing);k.

Socialist Republic of Viet Nam (scheduled for signing).

- 64 -

There are mandatory principles on the limitation conditions to grant an extradition
request under Indonesian Extradition Act Number 1 Year 1979:
1.

Respect to political crime [Article 5];

2.

There is a final judgement [Article 10];3.

Double Jeopardy [Article 11];4.

Lapse of Time [Article 12];5.

Reason to believe that prosecution or sentence is related to her/his religion, politicalopinion or nationality, or because of his certain race or group of the people [Article 14];

6.

Will be surrendered to a third jurisdiction other than Requesting Countries [Article 16].

However, Indonesian Extradition Act Number 1 Year 1979 stipulates the discretion ofrefusal based on the following conditions:1.

Extradition for crimes under military criminal law, which are not crimes under ordinarycriminal law – Discretion if it is decided otherwise in a treaty [Article 7];2.

Extradition Request to Indonesia for Indonesian Nationality – Discretion if consideredthat it will be better to prosecute the fugitive in the Requesting Country [Article 7];

3.

The criminal conduct has been committed in whole or in part in the territory of the
Republic of Indonesia [Article 8];

4.

The person sought under criminal proceedings in Indonesia, discretion if the Requesting
Country agreed for postponement [Article 9];5.

The criminal law underlying the request is related to the provision of the death penalty,
discretion if the Requesting Country could obtain the assurance that death penalty will
not be imposed against the person sought [Article 13];

6.

Rule of Specialty assurance could not surrender by specific statement from theRequesting Country, discretion if the President of the Republic of Indonesia considers
waiving the assurance of specialty from the Requesting Country [Article 15].

Under the extradition principles of Indonesia, for urgent circumstances and when the
Requesting Country considers that there is a reason that the fugitive located in Indonesia
could be a flight risk, it is possible to implement a Request for Provisional Arrest (PAR)before the Extradition Request is made within the applicable time period (20 days underIndonesia national law, or specific time under the treaty).
The requirements for Provisional Arrest are:1.

Requesting Country could make the Provisional Arrest Requst (PAR) in cases of urgency
provided that the arrest is not contrary to the law of the Republic of Indonesia (i.e.
urgency reason: there are reasonable grounds to believe that if the fugitive is not- 65 -

immediately arrested, he/she will present a flight risk).
2.

PAR is requested when the document of extradition is under preparation in the
Requesting Country.

3.

PAR is applicable to requests from treaty- and non-treaty-based countries with Indonesia.

4.

Dual criminality principle is required in the criminal conduct which is made in the
document of request for provisional arrest.

5.

There is a time limit for the Requesting Country on submission of the document(original) through diplomatic channels (i.e. Indonesia and Australia for 45 days, butfrom non-treaty-based countries, it is 20 days). If the Requesting Country failed to fulfill
the obligations on this matter, the person(s) should be released from custody.

6.

PAR requests shall be sent by the competent authorities of the Requesting Country to thecompetent authorities in Indonesia (Head of Police of the Republic of Indonesia or the
Attorney General of the Republic of Indonesia through INTERPOL Indonesia) throughthe diplomatic channels or also could be sent directly by post or telegraph.

7.

Competent authorities in Indonesia will inform competent authorities of the Requesting
Country of the decision to arrest the person under PAR.

8.

If the extradition document was submitted at the time, the provisional arrest of the person
in custody will be continued to the arrest for extradition.

9.

Documents for extradition which were made previously by PAR at the first stage should
fulfill the requirement (refer to the extradition act or the treaty). It is important for
intensive communication and consultation before submission of the extradition request
document to make sure the extradition document can be granted.
IV. SOME PROBLEMS CONCERNING MLA AND EXTRADITION
Indonesia has some problems with incoming or outgoing MLA and Extradition.

A. MLA- Format of request. Sometimes requests do not come from the designated Central
Authority of the state. We frequently receive letters rogatory, not requests for MLA.
- Bank secrecy. Under Law Number 10, 1998, Banks must protect the owner of theaccount unless the owner is sued as a suspect.
- Differences of legal systems. Indonesia sometimes has a problem with different
legal systems from other counties. Mainly, how to fulfill the principles of dual
criminality. Related to this problem is concerning Interpretation of legal
terminology. The side effecteffectsofofdifferent
differentoflegal
legalsystems
systemsare
is problems
problems withwithinvestigation and prosecution.
B. EXTRADITION
In extradition, the problems are similar to MLA.

- 66 -

- Format of Arrest Warrant. Each country has a different format and different
officials who issue (some countries by police, others by the courts)- Dual Criminality.
- Differences of legal terminology.
V. SUGGESTIONS
To eliminate problems, we can consider:a. The need to expedite and streamline MLA and Extradition and to provide eachother easy access to up-to-date information, legislation and forms on MLA and
Extradition;b. Informal consultation and bilateral meetings between Central Authorities;
c. Building a regional cooperative network for efficient and effective MLA and
Extradition.
VI. CONCLUSION
International legal cooperation among the countries should be promoted. Indonesia
supports all efforts to combat transnational crime by legal instruments and is a party to someinternational conventions as well as bilateral treaties. Indonesia also supports building
networks to combat transnational crime through formal and informal relationships.

- 67 -

ASSET RECOVERY AND MUTUAL LEGAL ASSISTANCE IN
INDONESIA: THE PRESENT AND THE FUTURE
Chuck Suryosumpeno*

I. INTRODUCTION
The criminal offenders have the ability and capacity to commit crimes and place theircrime-related assets in any jurisdiction they think fit. They use any loopholes in nationallaw and legislation and exploit the inflexibility and incompatibility of the legal system fortheir own ends.
The Indonesian Government is fully aware of trans-national crime and therefore takes theview that there is no better solution to combat crime other than to cooperate with other states
foreacheachothers
otherslaws
lawsandandlegislation.
legislation.
on the basis of good relations and respect to
The objective of this paper is to provide knowledge regarding the general description on
recoverywithinthe theframe
of MLA
works
in Indonesia.
how asset
the asset
recoverywithinframe
of MLA
works
in Indonesia.
II. SEARCH, SEIZURE AND FORFEITURE IN INDONESIA
Indonesia has various investigating authorities. For general crimes, the investigating
authorities are divided into two groups. The first is the Indonesian National Police and thesecond is Civil Servant Investigators (PPNS) such as immigration, customs, tax and forestry.
For specific crimes such as corruption cases, the investigators are the Indonesian National
Police, the Prosecution Service and Corruption Eradication Commission (KPK). For humanrights violations, the investigator is the Prosecution Service.
Despite various investigating authorities, prosecution is the authority of the Prosecution
Service. For corruption cases the prosecution authority is executed by two agencies, i.e.:
The prosecutors from the Prosecution Service and prosecutors assigned to the Corruption
Eradication Commission (KPK).
In general, the criminal procedure for search, seizure and forfeiture is pursuant to Law no
8 of 1981 (KUHAP). When the case is still premature, i.e. in the intelligence data gatheringand preliminary investigation stage, it is not yet “pro justitia” (for the sake of justice). At
this point the use of force cannot be utilized by the law enforcement.
The persons of interest may provide information or data on a voluntary basis. Therefore
the action of search and seizure is not an option. When the case is upgraded into theinvestigation stage, then investigators are authorized to compel the suspect, witness or any*

Senior Prosecutor, Chief of Asset Recovery Task Force AGO Indonesia, Head of International Division AGO
Indonesia, Member of the Indonesian Integrated Team for Tracking and Arresting Corruptors, National Contact
Person CARIN for Indonesia.

- 68 -

relevant parties to transfer the legal control over their assets to the investigating authorities
since the investigation is now transformed into “pro justitia”
In order to carry out a search, investigators need a warrant and permission from a district
court. When a circumstance compels the investigators to act swiftly they may carry out the
search and later request approval from the court. The search can be a body search; clothing
search; property search. Witnesses have to be present during the search of property and incase of the owner subjects search, the local neighborhood leaders have to be present towitness the search. A copy of the minutes of the search is made available to the owners.
Goods, articles, property or other assets are subject to seizure if they meet criteria setsout by the law. Those criteria are:z

Obtained from a crime or as proceeds of crime.

z

Used as a tool of crime or tool to prepare the crime.

z

Used to hinder the investigation of a crime.

z

Made specifically to commit a crime.

z

Other goods, articles, property or assets that have direct connection with the crime.

Assets seized under civil law or bankruptcy cases may be re-seized for the purpose ofinvestigation, prosecution and trial of a criminal case as long as they meet any criteria as
mentioned above.
III. MUTUAL LEGAL ASSISTANCE LAW IN INDONESIA
The legal basis for the Indonesian law enforcement to honour requests from foreignstates for mutual legal assistance is Law Number 1 of 2006 regarding Mutual Legal
Assistance on Criminal Matters. For the ASEAN region, Indonesia is the signatory of theTreaty of Mutual Legal Assistance in Criminal Matters, or better known as AMLAT, wassigned in Kuala Lumpur, Malaysia on 29 November 2004. The treaty itself was ratified by
the parliament and enforced by Law Number 19 of 2008 regarding the Ratification of theTreaty of Mutual Legal Assistance in Criminal Matters.
The areas covered by MLA are investigation, prosecution and court hearings inaccordance with national laws and regulations. In relation to assets, several types ofassistance that can be honoured are: the execution of requests for search and seizure; therecovery of pecuniary penalties related to the crime; the prohibition of asset transactions andthe freeze of assets to satisfy the pecuniary penalties; and tracing assets.
Not all requests can be honoured. There are absolute and facultative grounds forrefusal. The request is refused if the alleged crime which is the basis of the request is:z

A crime of political nature with the exception of attempted assassination of the headof a state of government;- 69 -

z

A crime that falls under the military laws;z

The offender has been acquitted, granted clemency, or is finishing serving the sentence;z

Non-prosecutable in Indonesia;zRelated to race, gender, religion, nationality or political views of the alleged offender;z

Detrimental to the national laws, sovereignty, security and interest.

The request placed by a requesting state may be refused on the ground that the alleged
offence is:z

not a crime if committed in the Indonesian jurisdiction;z

Punishable by capital punishment;z

Detrimental to the Indonesian criminal procedure;zWill endangertheEndangering
thesafety
safetyofofpersons
personsififthetherequest
requestisishonoured;honoured;z

Burdening the state finances if the request is honoured.

There are three optional avenues for a requesting state in making the request, either by
the formal fashion or by the informal one. First, the requesting state with MLA agreementwith Indonesia may place its request directly through the central authority to the central
authority mechanism. The request is addressed to the Indonesian Ministry of Justice andHuman Rights as the central authority. The ministry will then refer such a request to therelevant competent authority (the Attorney General or Chief of National Police) for a follow
up. In the absence of such agreement, a request can be made through diplomatic channels.
The Ministry of Foreign Affairs will refer such request to the Ministry of Justice and Human
Rights, which in turn refers it to the competent authority.
Alternatively, a requesting state can make an informal request to the requested statethrough agency-to-agency channels. For example: Attorney General Office of any ASEAN
country may be in direct contact with relevant unit within the Attorney General Office of the
Republic of Indonesia to exchange information in regard to the case that MLA is sought.
This procedure may speed up the process by avoiding unnecessary delays and unforeseen
obstacles.
The request for assistance has to be accompanied by the court order or court permission
by the requesting state. If search and seizure of assets are necessitated and a proper warrant
has to be attached as well. On the basis of the warrant and other relevant documents fromthe requesting state the Attorney General or the Chief of the National Police will follow up by
issuing the similar warrant in order to execute the request. In the event that the law
enforcement must ask swiftly,
they may
may execute
execute aa warrant
warrant without
without having to secure the court’sswiftly they
permission in the first place. The execution of warrant in this nature is limited to assets thatare movable. After the execution the in-charge official must immediately seek approval fromthe district court within its jurisdiction. At its discretion, the court may or may not approve- 70 -

the action of the law enforcement official. For immovable assets permission by the district
court must be sought before a warrant can be executed.
IV. THE FUTURE
In regard to the asset recovery, the Indonesia Criminal Procedure (KUHAP) adopts theprinciple of in personam jurisdiction, meaning that assets can be frozen, seized and forfeited
only if such assets can be linked to a crime and the offenders, it is much harder for law
enforcement officials to find a link between the assets and the offender. The in personam
principle cannot satisfactorily address the difficulty of law enforcement. Therefore
Indonesia is now preparing a new law (bill) regarding the asset recovery in which the in rem
principle is adopted and will complement the in personam principle in KUHAP.
In the last two years (2011̆2012) the Attorney General Office of the Republic ofIndonesia has established and developed an Asset Recovery Task Force. During the two-year
period this task forced recovered 1.2 trillion rupiahs from drug and corruption cases. The task
force has already been internationally recognized because it is engaged with many
international networks such as CARIN (Europol), ARINSA (South Africa), RRAG (SouthAmerica).
This task force is an embryo of The Indonesian Asset Recovery Office and will become apermanent working unit under the direction of the Attorney General, which has the ability tohandle asset recovery. We will take advantage of the existence of this unit to have mutual
cooperation in combating trans-border crimes in which assets are involved.

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