The court's decision should be used as a requirement for the freezing and confiscation of questionable assets. Not the other way around – seizing the assets but leaving the accusers untouched by the law.
By
EFENDI LOD SIMANJUNTAK
·7 minutes read
The court's ruling against the perpetrator of the criminal act of money laundering should be used as the requirement for the freezing and confiscation of questionable wealth. Not, the other way around where assets are seized but the perpetrators go untouched by the law.
The news regarding the assets of Rafael Alun Trisambodo, a tax official at the Finance Ministry, caught the attention of the public, not only due to the large amount of his wealth reported to the State Official Wealth Report (LHKPN) but also because of the findings of money worth tens of billions of rupiah in safe deposit boxes. Rafael’s questionable wealth has been in the spotlight because it does not match his profile as a state civil servant.
Public opinion has been formed that the person concerned committed money laundering. However, we do not know yet what crime he committed other than suspecting that the acquisition of these assets was related to corruption due to his position a state official at the Finance Ministry.
Apart from that, it is reasonable to suspect that the questionable wealth originates from a criminal act (proceed of crime) because it is impossible for him to obtain such a large amount of assets if they only came from legal sources of incomes such as salary. The Corruption Eradication Commission (KPK), for example, said that Rafael had received gratuities from a number of taxpayers since 2011.
So, the question is, can these assets be confiscated while the perpetrator has not been found guilty of a crime?
Suspicious transactions
Normatively, unreasonable or questionable wealth of officials is related to suspicious transactions as stipulated in Law No. 8 of 2010 concerning money laundering crimes (TPPU). What is the meaning of a suspicious transaction?
Referring to the Elucidation of Article 23 of the TPPU Law, a suspicious transaction is a transaction that is not fair and does not match the profile, or banking transactions that cumulatively exceed Rp 500 million (US$33,500) in one day.
Suspicious transactions are classified as transactions that have no clear economic and business purposes, the excessive and repetitive use of cash as well as unusual transaction activities.
Suspicious transactions must be reported by financial institutions to the Financial Transaction Reports and Analysis Center (PPATK). The PPATK will later conduct an analysis as to whether the questionable assets were related to a crime or not.
If there is an indication of a criminal act, the PPATK can report the suspected perpetrator to law enforcement officials for investigation. The results of the PPATK's analysis submitted to law enforcement officials can be at least used as initial evidence of a criminal act.
The suspicious transactions can become a complex legal issue if the perpetrators are not found guilty by the court. This is because money laundering is classified as a follow-up crime (subsequent offense), not an independent crime, so money laundering is highly dependent on the primary crime.
As a subsequent offense, which is oriented toward concealing and disguising the proceeds of crime, it cannot be separated from the predicate offense as a source of acquiring assets. Therefore, it is impossible for assets suspected to be the proceeds of crime to be confiscated without first being found guilty by a court of law.
In other words, the perpetrator must first be convicted of committing a primary crime, so that assets originating from a crime can legally be confiscated on the basis of money laundering (secondary crime).
The relationship between money laundering and the primary crime
Why is it important to prove the primary crime before the confiscation of the questionable assets is carried out? This is important to determine the cause in order to ensure that the money laundering is a consequence. In the end, a "relationship of crime" is sought between the principal sentence and the follow-up sentence, because in money laundering there is always a cause-and-effect relationship. If the cause is illegal, the effect is also illegal. Conversely, if the cause is legal, it is impossible for the consequence to be illegal.
If the result is illegal, is it certain that the cause is illegal too?
For the latter, is it necessary to prove whether someone who controls illegal assets has knowledge or awareness of the origins of the assets in question? If not, of course he cannot be blamed because in criminal law there is the principle of "not being punished if there is no mistake".
On the other hand, the provisions of Article 69 of the TPPU Law state that the primary/predicate crime does not have to be proven first. This article gives the impression that if there is sufficient evidence of money laundering, the predicate crime does not need to be proven (beforehand).
Referring to the decision of the Constitutional Court (MK) No. 77/PUU-XII/2014 regarding Article 69, which considers that it is unfair if the money laundering is clear, but is not prosecuted just because the primary crime is not proven beforehand, the decision of the Constitutional Court gives the impression that money laundering seems to be classified as an independent crime that does not depend on the primary crime.
In fact, if we take a closer look, both the regulations and the decision of the Constitutional Court do not intend to rule out the need to prove a predicate crime, other than to determine whether the primary crime and money laundering should be investigated/prosecuted separately or together.
The decision of the Constitutional Court gives the impression that money laundering seems to be classified as an independent crime that does not depend on the primary crime.
Therefore, to understand this interpretation it is necessary to put it in a pragmatic perspective, bearing in mind that money laundering is classified as an extraordinary crime. This means that if the investigation or prosecution of money laundering is carried out separately from the main crime, it is feared that the proceeds of crime/money laundering will be difficult to trace or be confiscated, so a more progressive approach is needed by combining investigations and prosecutions simultaneously. This approach makes more sense. This means that there is no need to wait for evidence of the primary crime to be carried out first. This is intended to facilitate asset recovery.
That way, as long as it concerns the "confiscation" of assets related to money laundering, it can be justified in accordance with Article 39 Paragraph (1) of the Criminal Procedure Code. In fact, the PPATK itself has the authority to ask financial service providers to temporarily stop suspicious transactions.
The validity of confiscation of the results of TPPU
Nevertheless, the "confiscation" of assets related to money laundering without proving the primary crime is classified as harassment against legal certainty, because the defendant's guilt for the primary crime is a prerequisite for the confiscation of assets. Without the court decision, the confiscation of questionable assets is not legitimate.
This is reflected in the court's verdict that after the defendant is found guilty, the assets resulting from the crime can be confiscated or returned to those who are entitled to them.
The issue of money laundering, especially regarding suspicious transactions, is a legal issue that is laden with norms and laws of evidence. It is not enough if an official's assets are questionable and not in accordance with the profile and he is immediately considered to have committed money laundering.
Proof is needed regarding the acquisition of the assets referred to by the prosecutor, including through the reverse verification mechanism as stipulated in Article 77 of the TPPU Law. In this case, the court's decision on the perpetrator should be used as a requirement for the freezing and confiscation of questionable assets. Not the other way around – seizing the assets but leaving the perpetrators untouched by the law.
ARSIP EFENDI LOD SIMANJUNTAK
Efendi Lod Simanjuntak
Efendi Lod Simanjuntak, law practitioner and lecturer at Prasetiya Mulya University
