CORRUPTION INVESTIGATION
AND INTERNATIONAL COOPERATION
Muhammad Y. Adhyaksana*I.

INTRODUCTION

After more than 15 years of implementing reformasi,1 corruption remains to be one of themost problematic issues in Indonesia. Indeed, the prevention and eradication of corruption is acomplicated task. Corruption is still a systemic problem hampering the nation’s efforts to advancethe national development. It is a high value political campaign as it often involves high level
officials, both from the government and political parties’ elites. The eradication of corruption
continues as one of the priorities determined by the nation. However, the complexity of corruption
cases and the unavailability of effective resources reduce the promotion of the effort, despite ahigher corruption perception index earned this year.2
For Indonesia, reformasi needs to continue and legal reforms must be a priority. Withstronger legal frameworks, it is expected that the eradication of corruption would produce moreachievements. Indonesian society demands that corruption be eliminated from the country, a wish
that stimulates innovation and capacity to increase numbers of successful prosecution of corruption
cases, both from the aim of punishing the offender and recovering the proceeds of crime.
Investigation is an important part of criminal proceedings to achieve the goal of having a
successful case. Legislation, as a legal basis, will guide investigators in conducting their
responsibilities in collecting evidence and in finding the suspect. Investigation must follow lawfulprocedure and must be conducted in line with the rules of evidence to make it admissible and usable
in court proceedings.
II.

CORRUPTION INVESTIGATIONA.

Legislation on Investigation and Admissible Evidence
Investigation of corruption cases is provided in Law No. 31 Year 1999 as amended by Law
No. 20 Year 2001 on the Eradication of Corruption Crime. In relation to Komisi Pemberantasan
Korupsi (the Corruption Eradication Commission, or the KPK), Law No. 30 Year 2002 on the KPK
also provides power regarding investigation. However, investigation is generally governed in theIndonesian Kitab Undang-Undang Hukum Acara Pidana (Criminal Procedure Code, or KUHAP).
KUHAP defines investigation and breaks down details on how investigatory power should be
conducted. As corruption is classified as “a special crime”, the rules of procedure are provided inlegislation outside KUHAP, for instance in the area of money laundering, terrorism, etc.
*

Attorney-General’s Office, Indonesia.
Reformasi is an era of promoting democracy and good governance in all aspects of the society. It refers to thetime of the fall of Suharto in May 1998 as a starting point. Reformasi is also considered as a mile stone for themodern history of Indonesia.
2“At Least 360 Indonesians jailed for corruption: VP”, The Jakarta Post [online], (31 Oct. 2013)<http://www.thejakartapost.com/news/2013/10/31/at-least-360-indonesians-jailed-corruption-vp.html> accessed
27 Dec. 2013. Indonesia’s ranking has improved to 87th out of 176 countries on The Global CompetitivenessIndex 2012-2013.
1- 69 -

Nevertheless, the general rules of the Criminal Procedure Code apply when there is no special ruleprovided in the anti-corruption law.
Types of evidence are pivotal because they establish the scope of evidence admissible incriminal proceedings, particularly when a case is prosecuted before a judge. Indonesian criminal
law recognizes the following types of evidence:x

Witness testimonyx

Expert testimonyx

Letters (including written documents)x

Indicationx

Defendant testimony (confession or denial)3

In addition to those five types of evidence, the anti-corruption law introduces new forms ofevidence: evidence in the form of electronic or digital documents. These two types of evidence areprovided in Article 26A Law No. 20 Year 2001 on the amendment of Law No. 31 Year 1999 on the
Eradication of Corruption Crime. The inclusion of documents is to avoid disputes that documents
containing pictures or images would not be construed as “letters” as governed by KUHAP.
The KPK is considered to be a new investigative body, established under the spirit ofreformasi. It has been provided with powers to strengthen its function against corruption;
powers that do not apply to the two other counterparts: Kejaksaan (Attorney-General’s
Office-AGO) and Kepolisian Negara Republik Indonesia (Indonesian National PolicePOLRI). The law provides authorization for the KPK, both investigators and prosecutors, toconduct the following actions in any criminal proceedings:

3x

tap into communication lines and record conversations;xorder the relevant institution to ban an individual(s) from travelling abroad;x

request information from banks or other financial institutions about the financial
details of a suspect or defendant;xorder banks or other financial institutions to block accounts suspected to harbor
the gains of corrupt activities of a suspect, defendant, or other connectedparties;x

order the superior of a suspect to temporarily terminate the suspect from office;xrequest data on the wealth and tax details of a suspect or defendant from therelevant institutions;xtemporarily halt financial transactions, trade transactions, and other forms of

As provided in Article 184 KUHAP.

- 70 -

contract, or to temporarily annul permits, licenses, and concessions owned bysuspects or defendants, assuming that preliminary evidence points to connections
to a corruption case currently being investigated;xrequest assistance from Interpol Indonesia or the law enforcement institutions ofother nations to conduct searches, arrests, and confiscations in foreigncountries;x

request assistance from the Police or other relevant institutions to conductarrests, confinements, raids, and confiscations in corruption cases currently
under investigation.4

B.
1.

Advancing Prosecution of Corruption Cases: Targeting Stolen Assets
Anti-Money-Laundering Regime
Indonesia has improved its legislation against money laundering by passing Law No. 8 Year2010 on the Prevention and Eradication of the crime of money laundering. It provides abreakthrough on the investigation of money-laundering offences by allowing the investigator of thepredicate crime to simultaneously conduct investigation of the money laundering case; an issue thatwas previously complained about when the previous law only provided power to investigate
money-laundering crimes to police investigators.
2.

Recovering Stolen Assets
One of the approaches to increase the deterrent factor in the fight against corruption is
promoting asset recovery and using the anti-money-laundering provisions to confiscate illegal
assets owned or controlled by the defendant. Asset recovery has become an important method forlaw enforcement agents, prosecutors and judges to remove tainted assets of corrupt officials or theirco-offenders from the private sector. Recovering stolen assets can be done through a few channels
such as criminal proceedings, civil proceedings or mediation (non-litigation). What is lacking
however is that the Indonesian law has not criminalized corruption in the private sector; hence, it isdifficult to extend the arms of anti-corruption to the other side of combating corruption.
3.

Approach to Investigation: Follow the Money
In the past, prosecution of corruption cases targeted punishment of the defendants; hence,neglecting the other aspect of the case: recovering the proceeds of corruption. Nowadays, asset
recovery has become one of the strategic approaches in achieving more successful prosecution.
Combined with the anti-money-laundering provisions, the eradication of corruption continues topursue convictions that include confiscation or compensation to the state in the event that theoffence has resulted in state financial loss. To simplify this approach, Indonesian investigators andprosecutors are implementing the concept of “follow the money”, meaning that not only are theoffenders punished, but also the money and financial capacity must be taken away. This would
reduce number of situations where the convicted person enjoys privileges during the sentencing or
takes benefits from the proceeds of crime he or she has committed.
C.
1.

Investigation Bodies
Kejaksaan (AGO);
The AGO was the only investigator of corruption cases when Law No. 3 Year 1971 on the
Eradication of the Crime of Corruption was implemented. In 1981 Indonesia passed a new
4
Article 12 Law No. 20 Year 2002 on the Commission on the Eradication of Corruption Crime can be found at<http://www.oecd.org/site/adboecdanti-corruptioninitiative/46814420.pdf>.

- 71 -

codification of the criminal procedure law (KUHAP); hence, the types of evidence applied incriminal proceedings, including at the investigation phase. Implementing this law of criminal
procedure, the AGO investigators basically took a conventional approach when it came to theinvestigation of corruption cases. This is understandable because KUHAP restricts evidence to thefive categories mentioned above.
In practice, it was inevitable that investigators from the AGO, the only investigative power
left to the prosecutor office regarding financial crimes, relied on interviewing witnesses and experts
from the state or the government auditors. In 1999, and as amended in 2001, a new form ofevidence was introduced in the anti-corruption law as mentioned above. Electronic and digital
evidence have since been recognized as types of evidence admissible at trial in support of adefendant’s guilt.
2.

Kepolisian (POLRI);
Police investigators gained power to investigate corruption cases in 2002 when Law No. 2
Year 2002 on the Indonesian National Police was enacted. Similar to its counterpart at the AGO,
police investigators must follow all procedures in the anti-corruption law and KUHAP. Because it
is quite a new role, police investigators are still promoting their efforts to produce more corruption
cases to be submitted to the prosecutors.
With the ability to investigate all crimes in accordance with the legislation, POLRI may
develop its capacity in fighting financial crimes by optimizing all facilities to develop investigation
and build a solid case before submitting it to the prosecutors’ office. The sharing of information
throughout the International Criminal Police Organization (ICPO) can contribute to theinvestigation of transnational cases concerning corruption.
3.

Komisi Pemberantasan Korupsi (KPK)The KPK was introduced in 2003 to respond to public demand to address the impacts ofcorruption in day-to-day life. People wanted a new agency that would deal progressively withcorruption. In line with the development of the anti-money-laundering regime, the KPK built aneffective agency responsible for prevention and the eradication of corruption, adding yet anothersuper-investigative body to the arena of combating corruption.
The approach of investigation can be done through a different way because the legislation
provides a special mechanism for the KPK. It has been given power to intercept or record
communication without court or judicial officer approval. Therefore, the KPK is privileged in thesense that it may use more powerful tools in developing corruption cases. Another powerful tool isthe ability to freeze any bank account concerning the suspect, the defendant or any other implicatedparty.
D.

Investigative Methods to Conduct Effective Investigation
Collecting evidence is a key process in an investigation. Hence, some investigations require
more patience than others. Finding suspects can be difficult; sometimes they are determined in the
beginning, but it is not uncommon to find suspects at a later stage of the investigation. Because thelaw states that financial information can only be obtained concerning suspects or defendants, it ishard to gain information on financial intelligence without support from other institutions such as
Pusat Pelaporan dan Analisis Transaksi Keuangan (Indonesian Financial Transaction Reports andAnalysis-PPATK). This is one of the challenges in establishing evidence of a financial crime suchas corruption.

- 72 -

Whistle-blowers or cooperative witnesses can play a great role in reducing the challenge intackling corruption. The establishment of Lembaga Perlindungan Saksi dan Korban (Victim andWitness Protection Agency-LPSK) allows key and cooperative witnesses to be protected. This
helps investigators when developing the case and collecting evidence.
Methods of investigation generally can be defined into the following:
1.

Interviewing Witnesses
Witnesses are one of the key elements for guiding investigations in the right direction.
Basically, Indonesia adopts the principle of unus testis nullus testis in which one-witness testimony
is insufficient testimony to convict a defendant. It means that there must be two witnesses for theevidence to become valid. This applies in corruption cases. Because corruption can involve crimes
other than bribery, a witness may play a key role in establishing facts regarding the crime.
Particularly, when it involves the element of state financial loss, investigators need informationfrom insiders; hence, witnesses’ testimony will be important at the early stage of investigation. In
contrast, when it involves bribery or being “caught in the act”, other methods of investigation are
more helpful.
2.

Obtaining Expertise on Technical Matters
Experts in corruption cases are relevant and required because of the fact that prosecutors must
prove that the corrupt act has resulted in state financial loss. Therefore, auditors and forensic
accountants play a great role in helping prosecutors bring the cases before judges. This contributionof experts who have technical knowledge of the matter helps investigators prepare the cases.
However, there is concern over the increased role of criminal law experts. Their testimony often
contradicts each other and depends on who is inviting the experts to the court hearing. What often
happens is they disagree over the state financial loss. It is important to highlight that experts’testimony aims to help the court in establishing material facts. Hence, the opinions of academic
experts should be avoided. The court must rely only on technical experts to establish whether a state
financial loss exists. In these cases, an auditor, a forensic accountant or an IT expert will be more
relevant.
3.

Collecting Financial Intelligence and Documents
Corruption is a financial crime. Financial information on suspects or persons implicated in
the corrupt acts is needed to develop the case and broaden the scope of investigation. With thedevelopment of Financial Intelligence Units’ (FIU) networks, Indonesian law enforcement agentscan strengthen their investigation by using information and analysis available on PPATK. Bank
statements or other documents are also useful to establish the trail of the proceeds of crime and tohelp investigators follow the illegal money.
PPATK also can play a great role as a trigger to investigate corruption cases, because it collects
suspicious transaction reports from financial institutions and other reporting parties. Therefore, its
analysis, which is later submitted to the national police and the AGO, may become a key lead in a
corruption case.
4.

Conducting Surveillance, Interception and Recording
The corruption investigators basically are equipped with power to conduct surveillance,
communication interception or recording. However, the privilege is given to KPK to intercept or torecord communication without court approval. Indeed, the power given to KPK has led tosuccessful high profile cases that primarily involve bribery.

- 73 -

III.

INTERNATIONAL COOPERATION

A.

International Asset Recovery
The legal actions for pursuing asset recovery are various. They include the following
mechanisms:
x domestic criminal prosecution and confiscation, followed by an MLA request to
enforce orders in foreign jurisdictions;
x NCB (non-conviction-based) confiscation, followed by an MLA request or otherforms of international cooperation to enforce orders in foreign jurisdictions;x private civil actions, including formal insolvency process;x criminal prosecution and confiscation or NCB confiscation initiated by a foreign
jurisdiction (requires jurisdiction over an offence and cooperation from thejurisdiction harmed by the corruption offences); andx administrative confiscation.5
Indonesia should avoid problems of investigating cross-border corruption by dedicating
the necessary resources to pursue the stolen assets abroad. It should be a special agency orunit dealing with the investigation, and asset recovery consists of financial investigators,
prosecutors, state attorneys, auditors, forensic accountants and other competent authorities
involved in asset recovery issues. Specialized agencies or units within existing agencies
should be given the resources to satisfy their mandate to facilitate asset recovery, bearing in
mind that the central authority does not become involved in financial investigations or in
criminal proceedings but is mainly an administrative authority.6
Investigators also must take advantage of the developments in the area of international
legal cooperation, to enable assistance from other countries. Establishing the trail of themoney and other necessary financial intelligence is important to demonstrate the link between
the proceeds of corruption and the criminal conduct done by the accused. Mutual legal
assistance (MLA) is an effective method of gathering evidence and conducting criminal
proceedings. Informal cooperation is even crucial to cope with the challenges of differences
in a domestic legal system. Global networks against money-laundering, such as EgmontGroup or ICPO, are also helpful in broadening the investigation in order to achieve maximum
results.
B.

Technical AssistanceTechnical assistance is addressed in Chapter VI of the United Nations Convention
against Corruption (UNCAC) on technical assistance and information exchange. Indonesia
has ratified UNCAC. The aim of technical assistance is to help countries, including Indonesia
to recover their assets by providing technical assistance agreed on by the parties. The
assistance must meet the specific needs of the actual case and of course the local context. The
donors must also consider paying lawyers' fees, so as to avoid countries abandoning theirefforts to trace assets and cooperate with the requested State, because they lack the necessary
56Jean-Pierre Brun et al., Asset Recovery Handbook (The World Bank, 2011) 9.
Kevin M. Stephenson et al., Barriers to Asset Recovery (The World Bank, 2011) 31.

- 74 -

financial resources. Eventually, helping the requesting government to use the recovered funds
properly, or monitoring the use of these funds, is crucial so as to avoid further misuse.7
In relation to the availability of dedicated resources, it is important therefore toencourage Indonesia to dedicate specific resources to conduct improvements in capacity
building and other related matters. Technical assistance includes more than technical advice
and the transfer of expertise. In many cases it involves support for institutional and culturalchanges. Strategic planning and prioritization should be carried out taking local context into
account. The development of UNCAC’s implementation brings about guidelines andknowledge, so it opens ways of sharing of experience and exchange of information.8
Effective technical assistance is required to change the way of thinking of investigators,
prosecutors or even judges where possible9 to promote the implementation of UNCAC inpractice. The change required in our law enforcement agencies leads naturally to the need for
an increase in capacity and expertise to carry out the work. Almost all countries, whether
developed or developing, have deficiencies in capacity and expertise in the areas of MLA andasset recovery cases. Corrupt officials across the world have exploited this. The solutions
may include political will, capacity building and funding.10 Changing the way of thinking,however, requires more than these solutions. It needs a comprehensive policy across thewhole system, including the strengthening of investigative capacities of the agencies involvedin the fight against corruption. Increasing skills and expertise will make international
cooperation in investigating cross-border corruption and asset recovery more achievable.
IV.

CONCLUSION

Corruption investigation is not an easy task. It needs resources, skills and expertise.
Approaches, strategies and techniques must follow the development of technology as well as
the complexity of the crime. Indonesia has extended its types and scope of evidence that isgoverned by criminal procedure law to include new types of evidence such as electronic anddigital evidence to support investigative abilities. These opportunities must not be ignored
and must be promoted in line with the current policy to emphasize the anti-money-laundering
provisions.
Indonesian society demands stronger prosecution of corrupt officials both on thesentencing and the recovery of the proceeds of corruption. Therefore, achievements inhandling corruption cases are now determined by the ability to punish the offender throughsentencing and confiscating the proceeds of the crime. Despite challenges in proving the trailof money, investigators should exercise all available resources in collecting evidence, so thefacts described in the indictment are clear and complete. Solid evidence will help prosecutors
in defending the case against high-profile defence lawyers. Combining domestic investigation
abilities and international cooperation in criminal matters will enhance the capacity of the7
Anne Lugon-Molin, “Assets Recovery: Concrete Challenges for Development Assistance”, in Mark Pieth (ed.),Recovering Stolen Assets (2008) 298.
8
Nikos Passas, “UNCAC, Technical Assistance and Development Efforts” in Mark Pieth (ed.), Recovering
Stolen Assets (2008) 294.
9
Some years ago, it was not easy to invite judges to attend trainings, particularly because of concerns overjudicial independence; a judge should not be told what to do in handling cases. However, it has become morecommon in Indonesia that judges will join trainings together with prosecutors and other practitioners.
10
Alan Bacarese, “Tracing, Freezing, Confiscating, and Repatriating the Proceeds of Corruption”, the 6th
Regional Seminar on Making International Anti-Corruption Standards Operational, Paper presented at
ADB/OECD Conference in Bali, Indonesia, 5-7 September 2007, 124.

- 75 -

investigators, increase the possibility of producing a successful case, and practical and realexperience for future improvements.
Lacking expertise and skills can be a great obstacle for handling a complicatedcorruption case. Therefore, it is necessary for Indonesia to keep advancing capacity-building
projects under technical-assistance cooperation. The shift in the way of thinking among key
players in the criminal justice system requires consistent training and education to balance theneed of appropriate response to the systemic problem of corruption. The fact that Indonesia
now has three agencies responsible for investigating corruption cases may lead to more
success in the prosecution of high-profile corruption cases.

- 76 -