NEW LEGISLATION FRAMEWORKS IN ASSET RECOVERY

Transcription

1 NEW LEGISLATION FRAMEWORKS IN ASSET RECOVERY Workshop on New Strategic Directions in Controlling Corruption: The Recovery of Stolen Assets Bangkok, March 2008 Yusfidli Adhyaksana The Attorney General s Office of Indonesia 1

2 Issues Presented Indonesian Legal Frameworks in Asset Recovery, both Legislative and Institutional Approaches es; The links between corruption, money laundering and asset recovery; In-rem Forfeiture Draft of Legislation; The importance of having a widest measure in asset recovery; Conclusion. 2

3 Domestic Legal Frameworks- Legislation Act number 8/1981 on Code of Criminal Procedure Laws; Act number 31/1999 as amended by Act 20/2001 on Eradication of Corruption Offences; Act number 15/2002 as amended by Act number 25/2003 concerning The Crime of Money Laundering; Act number 1/2006 on Mutual Legal Assistance in Criminal Matters; Act number 7/2006 on the Ratification of UNCAC. 3

4 Domestic Legal Frameworks- Legislation-2 The 1999 anti-corruption law permits compensation or restitution up to the value of the proceeds of corruption; It also allows to file a civil suit in based on lack of criminal evidence or death of the accused; The anti-money laundering law provides no bank secrecy. 4

5 Domestic Legal Frameworks- Institutions Anti-money laundering unit (PPATK) was formed in 2002; Anti-corruption Commission (KPK) was established in 2003; Establishing a multi-agency team (in 2004) which is responsible to go after the escaped corruptors, including their asset,, hidden overseas; Strengthening Coordination among relevant institutions. 5

6 Corruption, Money Laundering and Asset recovery Corruption is getting more and more complicated; In most typical high-profile corruption cases, the proceeds disguised in legal forms of businesses and or tranferred accross the border. It is importance to establish the connection between the case and the transactions; The FIU Regional/International networks sharing of information can trigger further investigation of corruption. 6

7 Asset Recovery Process Tracing/ Identifying Freezing Seizing Confiscation/ Forfeiture 7

8 Methods of Asset Recovery Mutual Legal Assistance (MLA); Civil Litigation; Mediation; 8

9 Comparing MLA and Civil Action Civil litigation Often more effective than MLA; Civil method does not require criminal conviction or final judgment,, but domestic claims often mandatory; Civil mechanism is more expensive but sometimes is quicker; MLA is a form of G to G cooperation.. (much easier if parties would use UNCAC as a basis) 9

10 In-rem Asset Forfeiture Draft of Legislation-1 One form of resolving problems in recovering proceeds of corruption; The Bill is considered to be sensitive because of terminologies being used; The fact that very few civil-law background countries introduce in-rem or civil forfeiture, has raised questions; UNCAC encourages countries for a non-conviction, while FATF highlights civil forfeiture ; 10

11 In-rem Asset Forfeiture Draft of Legislation-2 Scope of the Bill: is it only to corruption or including all crimes, e.g. theft and other economic crimes?; The institutions: do we need a brand new body or attached to an existing one?; Powers: will we introduce new powerful jurisdiction or we adopt similar ones that apply to all current institutions?; Reciprocity: are we going to give assistance using this law for a country who does not have a similar one?; 11

12 The importance of having a widest measure While criminals use any method to commit their crimes why we limit ourselves; Modus of laundering the proceeds has become more sophisticated; Political Will and sufficient legal frameworks are keys; for instance, it would be better to allow inquiries to nonsuspect assets that might involve PEPs or High-level Officials; Much more information can be obtained from relevant authorities, including FIU and ICPO networks; 12

13 Coordination and Cooperation In Collecting Information 1 NCB-Interpol 2 F I U Police 4 Tax Authorities and Others 3 Immigration 13

14 Conclusion The effectiveness of Asset Recovery depends on political will, the legal frameworks of a country and consistency of law enforcement and judiciary; It is key to understand the concept of: tracing, freezing, seizing and confiscating/forfeiting; New laws should be able to solve problems and expand capacity not introducing new problems; Widest measure can be broaden by extending international networks; StAR program mainly deals with assistance of capacity and networks building, what more important is empowering ourselves. 14

15 Thank You 15