MUTUAL LEGAL ASSISTANCE IN TRANSNATIONAL CRIMINAL MATTERS IN RELATION WITH INDONESIAN CRIMINAL JUSTICE SYSTEM By: Angela Laxmi Dewati ID No. 017201300002 A Thesis presented to the Faculty of Humanities President University in partial fulfillment of the requirements of Bachelor Degree in Law 2017
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MUTUAL LEGAL ASSISTANCE IN TRANSNATIONAL CRIMINAL MATTERS IN RELATION WITH INDONESIAN CRIMINAL JUSTICE
SYSTEM
By:
Angela Laxmi Dewati
ID No. 017201300002
A Thesis presented to the Faculty of Humanities President University in partial fulfillment of the requirements of Bachelor Degree in Law
2017
i
THESIS ADVISOR RECOMMENDATION LETTER
This thesis entitled “MUTUAL LEGAL ASSISTANCE IN TRANSNATIONAL
CRIMINAL MATTERS IN RELATION WITH INDONESIANCRIMINAL JUSTICE
SYSTEM” prepared and submitted by Angela Laxmi Dewati in partial fulfillment of
requirements for the degree of Bachelor of Law in the Faculty of Humanities has been
reviewed and found to have satisfied the requirements for a thesis fit to be examined. I
therefore recommend this thesis for Oral Defense.
Cikarang, Indonesia, January 24th, 2017
Dr. Maria Francisca M, S.H., S.E., M.Kn
Advisor I
Zenny Rezania Dewantary, S.H., M. Hum.
Advisor II
ii
DECLARATION OF ORIGINALITY
I declare that this thesis, entitled “MUTUAL LEGAL ASSISTANCE IN
TRANSNATIONAL CRIMINAL MATTERS IN RELATION WITH INDONESIAN
CRIMINAL JUSTICE SYSTEM” is to the best of my knowledge and belief, an originality
piece of work that has not been submitted either in whole or in part, to another university to
obtain a degree.
Cikarang, Indonesia, January 24th, 2017
Angela Laxmi Dewati
iii
PANEL OF EXAMINERS APPROVAL SHEET
The Panel of Examiners declares that the thesis entitled “MUTUAL LEGAL
ASSISTANCE IN TRANSNATIONAL CRIMINAL MATTERS IN RELATION WITH
INDONESIAN CRIMINAL JUSTICE SYSTEM” that was submitted by Angela Laxmi
Dewati majoring in Law from the Faculty of Humanities was assessed and approved to have
passed the Oral Examination on Cikarang, Indonesia, February 15th, 2017.
Cikarang, Indonesia, January 22nd, 2017
Dr. Maria Francisca M, S.H., S.E., M.Kn
Chair Panel of Examiners/ Thesis Advisor I
Zenny Rezania Dewantary, S.H., M. Hum.
Examiner I/ Thesis Advisor II
Sujana Donandi Sinuraya, S.H., M.H
Examiner II
iv
ABSTRACT MUTUAL LEGAL ASSISTANCE IN TRANSNATIONAL CRIMINAL MATTERS
IN RELATION WITH INDONESIAN CRIMINAL JUSTICE SYSTEM
The influence of globalization in all areas of life in today's society is not inevitable and is already
being felt as a result almost all countries, especially in developing countries in general. Not only the
positive effects arising from the impact of globalization, but also the negative effect is that the
increased mobility of people can cause problems related to extra-territorial jurisdiction of a country.
Cooperation between countries is needed to facilitate the handling of the investigation, prosecution
and examination before the court on an issue that arises in both the Requesting and Requested State.
Mechanism of International Law, namely Mutual Legal Assistance in Criminal Matters is a
mechanism that aims to bridge the requests for legal assistance between countries concerned.Based on
Law No. 1 of 2006, has been enough to help the implementation of mutual legal assistance on
criminal matters between Indonesia and other countries and vice versa. But admittedly there are some
provisions in the legislation that there are still shortcomings that hinder the implementation of both
the demand of foreigners to Indonesia, and the Indonesian request to other countries, especially in
matters of coordination and the legal system.
Completion of these short- needs to be followed up immediately for the implementation of mutual
assistance in the future can be optimized. This thesis finally solved using normative juridical
approach.
Keywords: Mutual Legal Assistance, International Criminal Law, Law Mechanism
v
ACKNOWLEDGEMENT
Praise The Lord. The author would like to acknowledge her countless thanks to the Most
Gracious and The Most Merciful in the name of God, who always gives the author all the
best of this life and leads the author to the end of the journey to obtain the Bachelor
Degree of Law in President University by completing this thesis entitled “MUTUAL
LEGAL ASSISTANCE IN TRANSNATIONAL CRIMINAL MATTERS IN
RELATION WITH INDONESIAN CRIMINAL JUSTICE SYSTEM.” The author
would like to use this opportunity to express her deep and sincere gratitude to the
following people who have helped the author completing this thesis:
1. The Author’s Family, Mrs. Crescentia Merlina and Mr. Yant Christiana, the Author’s
mom and dad who always encourage and supported the author 24/7 and seven days a
week to continue pursuing the author’s dream to be a successful person and beneficial
to everyone, Evans Erlangga and Okky, the author’s brother and sister who have
become one of the biggest motivation for the author to pursue the bachelor degree
program.
2. Mrs. Dr. Maria Francisca M, S.H., S.E., M.Kn and Mrs. Zenny Rezania Dewantary,
S.H., M.Hum., as the author’s thesis advisor who sincerely and patiently has guided
and provided assistance during the preparation until the completion of this thesis
research, thank you for the time and the opportunity given.
3. Iwahori Yosafat, who always supported, motivated, cheered up, and accompanied the
author during the preparation of this thesis.
4. Mr. Erwin S. P Suroso and Mrs. Maria Tatiek, as the author’s grandparents who
always support the author’s financial issues and always remind the author to get close
with God. And also Mrs. Regina Ine Murweni as the author’s auntie, who is always
providing food and wifi during the completion of this Thesis
5. All lecturer in law Study Program; Mrs. Zenny, Mrs. Nadia, Mrs.Rahma, Ms. Maria,
Mr. Yance, Mr. Munir, Mr. Mahayoni, Mr. Ferry, Mr. Sujana, Mr. Edi, Mr. Laode,
Mr. Arif for their evaluable teaching and helped.
vi
6. LAW 2013; Naomi Kambuaya, Fadhil Brata, Noerfaizi Pratama, Hani Nuanza, and
Albertus Sinaga, for the friendship, unity, compactness, and togetherness in the
amazing three and a half year.
7. Ministry of Law and Human Rights, sub-Directorate Central Authority and
International Law Division for give the author the best experience in professional
working environment. Especially Mrs. Nurazizah Zikri, Mrs. Dina Juliani, Mrs.
Grace, Mr. Alit, Mr. Slamet, Mr. Udin, Mr. Unang, Mr. Reno, Mr. Basten, and all of
my friends at Ministry of Law and Human Rights.
8. Anyone that cannot be mentioned directly or indirectly who has helped the author
completing this thesis. The author highly appreciates any opinion and suggestion that
has helped in the writing of this thesis.
At the end, a bachelor degree is nothing but recognition that a person has completed
his/her study in university, this is not the end of the journey but this is the new beginning
of the new life. The author believes that this thesis is still far from perfection and
therefore any critics, suggestions, or responses to make this thesis better and beneficial
for those who read it will be highly appreciated.
Cikarang, Indonesia, January 24th, 2017
Angela Laxmi Dewati
vii
TABLE OF CONTENT
Thesis Advisor Recommendation Letter ............................................................................ i
Declaration of Originality ................................................................................................... ii
Panel of Examiners Approval Sheet ...................................................................................... iii
Abstract .......................................................................................................................... iv
Acknowledgement ............................................................................................................... v
Table of Content ............................................................................................................. vii
CHAPTER 1 ........................................................................................................................... 1
1.1 Background ............................................................................................................... 1
1.2 Research Problem ................................................................................................... 8
1.3 Research Objectives ................................................................................................... 8
1.4 Research Benefit ................................................................................................... 8
1.5 Research Methodology ....................................................................................... 8
1.6 The Framework of The Research ......................................................................... 10
CHAPTER 2 ......................................................................................................................... 12
2.1 Mutual Legal Assistance in Handling Transnational Crime ..................................... 12
2.1.1 Transnational Crime Definition ............................................................. 12
2.1.2 The Role of International Criminal Law in Handling The Transnational Crime ..................................................................................................................................... 13
2.2 Definition of MLA ................................................................................................. 16
2.2.1 The Primary Setting Law of The Republic of Indonesia Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters ............................................................. 21
2.2.2 The Principles of Mutual Legal Assistance in Criminal Matters ............. 25
viii
2.2.3 Forms and Implementation of The Assistance ..................................... 31
2.2.4 Fees and Allowances ......................................................................... 33
2.2.5 Term and Termination of Agreement ................................................. 33
CHAPTER 3 ......................................................................................................................... 34
3.1 Characteristics of Indonesia which Supports High Opportunities in Transnational Crimes ..................................................................................................................................... 34
3.2 Procedural Barriers and Coordination in Indonesia ..................................... 37
CHAPTER 4 ......................................................................................................................... 47
4.1 Analysis of The Effectiveness of Mutual Legal Assistance in Criminal Matters And Its Relationship With Indonesian National Law ............................................................. 47
4.2 The Effectiveness of Mutual Legal Assistance Treaty in Criminal Matters with National Interest ......................................................................................................................... 50
4.2.1 Provisions Applicable Law ......................................................................... 51
4.2.2 The Weaknesses of Law Enforcement ................................................. 52
4.2.3 Instrumental Barriers ......................................................................... 54
4.2.4 Management Barriers ......................................................................... 55
4.2.5 External Barriers ..................................................................................... 55
4.3 Alternatives in Combating Mutual Legal Assistance in Criminal Matters Barriers ....... 56
CHAPTER 5 ......................................................................................................................... 59
5.1 Conclusion ............................................................................................................. 59
5.2 Suggestions ............................................................................................................. 59
BIBLIOGRAPHY ................................................................................................. 61
1
CHAPTER 1
INTRODUCTION
1.1 Background
The fast development in the field of science and technology, have contributed to greater
human mobility transcend national boundaries to fulfill their needs. The influence of
globalization in all areas of life in today's society is not inevitable and is already being felt as
a result for almost all countries, especially in developing countries. This influence give
positive and also negative impact, positive impact include rapid improvement of community
relation in the economic field and in the field of international trade.1
Negative influence among other things, that the increased mobility of people can cause
problem in relation with extra-territorial jurisdiction of a country. This can be possible when
the problem relates to criminal offenses issues.2
Offenders must take responsibility for criminal action before the court and if its found
guilty he will be punished commensurate with his guilt. But not everyone is willing to take
their responsibility for their criminal actions, who fled to another country in order to avoid
prosecution in the country, that cause the involvement of both countries or even more. This
could happen because someone respectively have committed a crime in some countries. Or
crimes committed within the country or outside the country, consequences in some regions of
the country, so that the crime becomes an international crime.3
So to anticipate the modus operandi of these crimes, Indonesia bring out Law Number 1
Year 2006 on Mutual Legal Assistance in Criminal Matters (MLA) as the realization of the
1 Ramli Atmasasmita, Capita Selecta Criminal Law and Terminology, Mandar Maju, Bandung, 1995,
p.1 2 Yudha Bhakti, Criminal Jurisdiction in International Law, Master of Law Program, Graduate Padjadjaran University, Bandung, 2006.
3 Ramli Atmasasmita, Criminal Law Governing Applicability Limits of the Criminal Law In A State
Territorial Outer Limits, Expert International Criminal Law, Graduate School of ubuntu, 2007.
2
requirements of a country that has come out of the blacklist of state money launderers, it is
necessary to have legislation of governing mutual legal assistance in criminal matters.
These laws regulate in detail the request of mutual legal assistance in criminal matters
from the Government of the Republic of Indonesia with the Requested State were related to
the filing of requests for assistance, the requirements of the request for help to find or identify
the person, assistance to obtain evidence, and help to seek the presence of person.
Article 5 of Law Number. 1 Year 2006 on Mutual Legal Assistance in Criminal Matters
provides that:
(1) “Bantuan dapat dilakukan berdasarkan suatu perjanjian;
(2) Dalam hal bahwa ada perjanjian sebagaimana dimaksud pada ayat (1) maka bantuan
dapat dilakukan atas dasar hubungan baik berdasarkan prinsip resiprositas;”
In addition, this legislation is intended to lay a strong legal basis for regulating the mutual
legal assistance in criminal matters, as a guide for the Government of the Republic of
Indonesia in requesting and / or providing mutual legal assistance in criminal matters and
make the agreements with other countries.
In effort to streamline and improve The Law Number 1 Year 2006 on Mutual Legal
Assistance in Criminal Matters in the future, expected that Central Authority for obtaining
evidence from a foreign country, it would require the cooperation in the country include the
Ministry of Foreign Affairs, Police Department , the Attorney General, the Corruption
Eradication Commission (KPK), Reporting and Financial Transaction Analysis (PPATK),
Ministry of Law and Human Rights (as the Central Authority) in the hope of Mutual Legal
Assistance in Criminal Matters Law will come to accommodate all kinds of aspects of
transnational crimes.
Regarding these transnational crimes as stated in Indonesian Criminal Code is clearly
from the wording of the provisions of several articles in it, among other things:
Article 2 of the Criminal Code4:
4 Law Number 1 Year 1946 on the draft Criminal Law (Penal Code) jo. Law Number 73 Year 1958 concerning Criminal Code for the entire Territory of the Republic of Indonesia and to change the Criminal Code (State Gazette Year 1958 Number 127, Supplement to State Gazette No. 1660)
3
“Aturan pidana dalam perundang-undangan Indonesia berlaku bagi setiap orang yang
melakukan perbuatan pidana didalam Indonesia.”
This provision is in addition to showing the adoption of the principle of territoriality
(region) where the criminal law applies to anyone who commits an offense in the territory of
a particular country in this case Indonesia, also means that the person who committed the
crime are not necessarily physically really are in Indonesia, but the offense (strafbaar feit)
occurs in the region of Indonesia.5 Likewise person or legal subjects who did also not limited
to the citizens of Indonesia.
Article 3 of the Criminal Code :
“Aturan pidana dalam perundang-undangan Indonesia berlaku bagi setiap orang yang di
luar Indonesia, melakukan perbuatan pidana didalam perahu Indonesia.”
Similarly, the adoption of this provision in addition to showing the principle of
territoriality in which Indonesian laws applicable in the territory of Indonesia, including the
above of the Indonesian boat outside Indonesia, but also shows that the applicability of
national laws as well as for cross-border or transnational crimes.
Article 4 of the Criminal Code:
“Criminal provisions in the Indonesian laws applicable to anyone who commits outside
Indonesia:
1. one of the crimes under Articles 104, 106, 107,108, and 131.
2. an offense concerning currency or paper money issued by the state or the bank, or the
seal is removed and the brand used by the Government of Indonesia.
3. falsification of debt or debt certificates at the expense of Indonesia, at the expense of
a local or regional parts of Indonesia, including the falsification talon, mark or sign
dividend interest, which follows the letter or certificate, and marks issued in lieu of
the letter, or using letters the above-mentioned letter, which is false or falsified, as if
genuine and not faked;
4. one of the crimes referred to in Articles 438, 444 up to 446 of piracy and Article 447
of the delivery of water to power vehicles pirates and Article 479 j about control
5 AZ Abidin & Andi Hamzah, Introduction to Criminal Law Indonesia, PT. Yarsif Watampone Jakarta,
2010, p 84.
4
aircraft unlawfully, Article 479 letter l, m , n and o on crimes that threaten the safety
of civil aviation.”
Article 5 of the Criminal Code:
"(1) The provisions of criminal law in Indonesia applied to nationals countries outside
Indonesia did:
1. one of the crimes mentioned in Chapters I and II, the Second Book and Articles 160,
161, 240, 279, 450, and 451.
2. any of the following acts by a criminal provisions in the legislation Indonesia is seen
as a crime, while under the laws of the country where the act was committed by a
criminal threatened.
(3) The prosecution case referred to in item 2 can be done as well if the accused became
a citizen after doing the deed. "
The regulation of transnational crime as stipulated in the Criminal Code is based on the
principles of the criminal law, in this case 4 (four) principles enactment of national criminal
law, namely: Principle of Territorial (contained in Article 2 and 3), The National Active
Principle (contained in Article 5 ), The National Passive principle (contained in Article 4
paragraph (1), (2) and (4)) and Universal Principles (contained in Article 4 paragraph (2) and
(4)).6
Principles of the criminal law under the Penal Code restricted the application of the
provisions of international law that has been recognized by the Indonesian government in
accordance with the provisions of Article 9 of the Criminal Code. The sound of the
provisions of Article 9 of the Criminal Code contains a deep and broad meaning, in the sense
that, practitioners of law enforcement in Indonesia, including the establishment of laws must
understand the binding force of a treaty that has been ratified by Indonesia.
Indonesia itself as a member of the United Nations has had Law No. 5 of 2009 on
Ratification of the United Nations Convention Against Transnational Organized Crime
(UNTOC)7 as a container law in the fight against transnational crime poured.
6 Moeljatno, Principles of Criminal Law, 1987, p 38-53
7 Act Number. 5 of 2009 on Ratification of the United Nations Convention Against Transnational
Organized Crime (the Convention of the United Nations Against Crime Transnational Organized),
5
Broadly speaking UNTOC discuss substantive legal norms-substantially the scope of
application of the Convention, the principles of protection and respect for the sovereignty of
participating countries or parties to the Convention. In addition UNTOC also discusses legal
norms procedural, which is about procedural matters handling the case, which include
international cooperation between participating countries of the Convention, such as the
Extradition, transfer of prisoners, and mutual legal assistance or other articles relating to
international cooperation.
Indonesia has had several agreements Mutual Legal Assistance in Criminal Matters
with several countries, and the implementation using Reciprocity principle with countries that
have not has Mutual Legal Assistance in Criminal Matters Agreement with Indonesia.
But unfortunately, in the implementation of Mutual Legal Assistance in Criminal
Matters legislation are still not up as expected because when they wanted to do, law
enforcement against transnational crime are still experiencing difficulties.
Examples of the limiting factor is the differences in both parties’ legal systems.
Implementation of the MLA which had called in the background that hampered as
determined by differences in legal systems, banking and financial system, the political will
and the sovereignty, security, national interests and other interests.8
The legal system is a unified whole order or linked from the parts or elements that
are closely linked to one another, if there is a problem then resolved through the legal system
itself, and each part can stand alone.
One of the difficulties of the implementation of this Act is due to the lack of
coordination between competent authorities of each party, as a result of poor coordination
that led to the assistance should be given not optimal. For example, in providing assistance of
MLA request from the Singapore Government related to a case that requires a police officer
in the Riau Island named Damanik are asked to be a witness in a trial at Singapore. While in
the form of its MLA request, Singapore government submitted incomplete information
which only includes a name that is known as Damanik and worked as a policeman in the
Riau Island. Meanwhile, supporting information such as job title, and NIP (Employee
Identification Number) Damanik was not included. In the Article 28 paragraph (2) of Law
No. 1 of 2006 on Mutual Legal Assistance in Criminal Matters states that:
passed and enacted in Jakarta on January 12, 2009 (State Gazette Year 2009 Number 5, Supplement
No. 4960) 8 Agustinus Pohan, et al, 2008, Asset Crime, PUKAT UGM and Partnership, Yogyakarta, p. 19.
6
“Pengajuan permintaan Bantuan, sejauh itu diperlukan dan dimungkinkan harus juga
memuat:
a. identitas, kewarganegaraan, dan domisili dari orangyang dinilai sanggup
memberikan keterangan atau pernyataan yang terkait dengan suatu
penyidikan, penuntutan, dan pemeriksaan di sidang pengadilan;”
Identity is one of important element in facilitating the Competent authoritites in
search of someone who is considered competent to provide information in accordance with
the Requesting State. But in the case of Damanik, things like this would make the process of
assistance becomes blocked, because it takes many months to find a policeman named
Damanik without the position and NIP which makes it difficult to be found in the Riau
archipelago.
Examples of another limiting factor is the differences in both parties’ legal systems,
such as the Indonesian government was about to have a MLA agreement with the Switzerland
Government. Because of differences in both legal systems of Switzerland, several provisions
in the Treaty MLA can not all be implemented by the Switzerland.
For example in the banking problem, the Swistzerland Competent Authorities did not
able to provide any assistance regarding bank secrecy because they have very strict rules
about the confidentiality of the information of a bank account. In the format proposed by the
Switzerland government, the Switzerland can only provide assistance about tax transparency.
On the other hand, Indonesia has adopted the Bank Indonesia Regulation Number
2/19 / PBI / 2000 on Terms and Procedures for Granting LCommand or Written Licenses to
Unlock Bank Secrecy9, in Article 6 paragraph (1) stated that:
(1) “Untuk kepentingan peradilan dalam perkara pidana, Pimpinan Bank Indonesia
dapat memberikan izin tertulis kepada polisi, jaksa, atau hakim untuk memperoleh
keterangan dari Bank mengenai simpanan tersangka atau terdakwa pada Bank.”
Article above clearly stated that the information related to bank secrecy can be given
if needed in a criminal offense, with this Indonesia openly support the process of assistance
9 Bank Indonesia Regulation Number 2/19 / PBI / 2000 on Terms and Procedures for Granting
Licenses Written Orders Or Mmebuka Secret Bank, (State Gazette 2000 No. 152, Supplement to
State Gazette No. 3998)
7
related to bank secrecy, in the other hand Federal Act on the Switzerland Financial Market
Supervisory Authority (FINMASA)10 regulating the authority of Switzerland financial
supervision, especially in Article 22 paragraph (4) states that provide disclosure of
information regarding the bank account holder is declared as a criminal act.
Of course, this becomes difficult when the Indonesia require an assistance in the form
of a copy of the confidentiality of information about a bank account to reveal the existence of
a criminal offense related to banking problems.
Cooperation between countries is needed to facilitate the handling of the investigation,
prosecution and examination before the court that arises in both The Requesting and The
Requested country.11 In terms of cooperation in the field of law and criminal justice in the
national interest, the problem is in its jurisdiction over people who are in the criminal process
(on the stage of Inquiry, investigation, adjudication until the execution of the sentence)
against the crimes committed by someone related to the jurisdiction of another country.
To minimize the occurrence of friction between countries with regard to transnational
crimes, agreements between countries would be the solution, with the agreement expected to
occur mutual understanding between countries and reducing the crimes modus operandi that
are the common enemy of the world community.12
Difficult to catch the perpetrators of transnational crime is one proof that the laws of
Mutual Legal Assistance (MLA) has not brought a significant impact in combating crimes
that are very harmful for Indonesia. One of the inhibiting factors of the implementation of
this Act are distinct differences in the legal systems of every states’ sovereignty so that the
effectiveness of this law often experience conflicts of the criminal justice system in each
country. Therefore, the authors raise the research entitled “MUTUAL LEGAL
ASSISTANCE IN TRANSNATIONAL CRIMINAL MATTERS IN RELATION WITH
INDONESIAN CRIMINAL JUSTICE SYSTEM.”
10 Federal Act on the Swiss Financial Market Supervisory Authority (FINMASA) was passed by the
Federal Assembly of the Swiss Confederation on 1 February 2008. 11 I Wayan Parthiana, International Criminal Law, Yrama Widya, Bandung, 2006. 12 General Explanation of Law number 5 of 2009 on Ratification of the United Nations Convention Against Transnational Organized Crime.
8
1.2 Research Problem
Some of the issues to be discussed in this study are as follows:
1. How is the implementation of Mutual Legal Assistance in Criminal Matters in terms
of transnational criminal case settlement?
2. How is the effectiveness of Mutual Legal Assisance in Criminal Matters in relation
with Indonesian criminal law system?
1.3 Research Objectives 1. To determine the implementatio of Mutual Legal Assistance in Criminal Matters in
settling transnational criminal case.
2. To determine the effectiveness of Mutual Legal Assisance in Criminal Matters and its
relation with Indonesian criminal law system.
1.4 Research Benefit This research is expected to provide benefits such as :
1. Theoretically
To know the basics about the legal issues relating to the effectiveness of
the cooperation agreement on Mutual Legal Assistance in Criminal Matters in the
framework of national interests.
2. Practical
This research is useful as an input for the development and establishment
of legal major, repair and improvement of the Mutual Legal Assistance in
Criminal Matters Act.
1.5 Research Methodology 1. Methodolgy Approach
The method used in this research is normative juridical approach, because the
scope of this research is to study the law in practice is always framed by the legal
9
doctrines. Juridical approach done using by legal provisions which in force in
Indonesia, both primary legal materials and secondary legal material and also using
the expert opinion in the field of law, particularly those relating to the research
problem. This research was also supported by the normative approach by examining
the library material by studying and examining the theories, concepts and regulations
relating to the cases.13
2. Research Spesification
Research Spesification used in this research is descriptive analysis. It is
descriptive, because the research is intended to provide a detailed, systematic, factual
and comprehensive information regarding everything was investigated. While the
analysis research the analysis means classify, correlate and interpretation of data
related to Mutual Legal Assistance in Criminal Matters Agreement. Analysis of the
results of this research are expected to provide answers to the research problems.
3. Sources and Data Collection Techniques
Dala collection is intended to obtain data that is closely related to the existing
problems in this research. In this research, used secondary data which derived or
obtained from the study of documentary or literature studies14. Literature study was
conducted to obtain secondary data, ie to carry out an assessment of the legislation in
force, literatures, documents, scientific work with the research. The respondents of
this research is for the parties directly involved in these activities, among others: the
parties which are conducted to the Mutual Legal Assistance in Criminal Matters
Agreement, legal experts, community, and other relevant agencies.
The research sources used in this study are:15
a. Primary materials, which include the legislation in force, the
jurisprudence in relation with the subject matter of this research.
b. Secondary materials, consist of:
13 Joenarto. Democracy and the State Government System. Bina Literacy, Jakarta, 1983. Hal.22-24.
14 Sandjaja, B. and Albertus Heriyanto. Free Research. Jakarta: Achievement Pustakaraya. 2006.
15 Sri Mamudji et al., Methods of Legal Research and Writing, (Jakarta: Badan Publisher Faculty of
Law, University of Indonesia, 2005), p 2.
10
1. The results of the research that has been there previously
associated with research problems;
2. Literature, including the materials and the results of seminars
and conferences as well as the mess media reviews, including
reviews in legal magazines, popular magazines and newspapers
related to the object of research.
c. • Tertiary materials, comprising: Law Dictionary, Encyclopedia and
other supporting Dictionary;
d. Research tools used in this research are:
1. Literature study / normative (Library Studies), which studied
the literature relating to the object of this research, including
the research of the normative legislation relating to this
research.
2. Documentary Studies of primary and secondary materials. Data
collected includes:
a. The latest data regarding the problems of research in the area of
research;
b. Direct interviews with respondents on the basis of a concept
that has been prepared.
4. Data Analysis Methodology
The pattern of data analysis in this research is based on qualitative methods,
namely the qualitative interpretation of the data collected both primary data and
secondary data.
1.6 The Framework of The Research After going through the process of data collection, and data analysis, as well as the
conclusion of research, below are the systematic writing research reports:
CHAPTER I : Introduction, in this Chapter consist of; Background, Research
Problems, Usability Research, and Research Methods.
CHAPTER II : Overview the Juridical of Mutual Legal Assistance in Criminal
Matters, includes: Fundamentals of Setting Act No. 1 of 2006 on the Mutual Legal Assistance
in Criminal Matters In Handling Transnational Crime, The Scope of Mutual Legal Assistance
in Criminal Matters and its Exception Concept , The Procedure of Request Execution, The
11
Form and The Implementation of assistance, Fees and Allowances, Period of The Validity
and The Termination of the Agreement, The set of Transnational Criminal Law in relation
with Indonesian Law, and the Principles of International Law related the Mutual Legal
assistance in Criminal Matters (principle of Reciprocity and the principle of Dual
Criminality).
CHAPTER III : Study Cases Related to the Factors Which are Inhibit the
Implementation of Mutual Legal assistance in Criminal Matters.
CHAPTER IV : The Analysis of Mutual Legal assistance in Criminal Matters
Effectiveness and its relationship with the Indonesian Law, includes: Implementation of the
Mutual Legal assistance in Criminal Matters in Transnational Crimes, Procedural Barriers
and its Cooperation Coordination in Indonesia.
CHAPTER V : Cover, consist of Conclusion and Suggestion.
12
CHAPTER 2
Mutual Legal Assistance in Criminal Matters Treaty
2.1 Mutual Legal Assistance Treaty in Handling Transnational Crime
Globalization and interdependence of the economy of a country to another, in addition
to giving birth the welfare and advancement of civilization also have negative impacts,
among others, has encouraged the birth of cross-border crime in all parts of the world. In
today's era of information technology, the forms of crime undergone various developments,
both in terms of quantity and quality. Many types of the original crime is difficult to do, but
with advances in information technology make the act easier to do by anyone. Global
developments have changed the characteristics of the original crime in the domestic sphere
shifted to cross-border or transnational.16
2.1.1 Transnational Crime Definition
According to Indonesian Transnational Crime Centre (TNCC)17, the word cross
country is not only interpreted as meaning of international or cross-border, but more than that
the nature of the crime that involves cross-border as an important part of their criminal
activity. In addition transnational crime also includes crimes committed in one country, but
the consequences are very influential on other countries.18
According to M. Pries in Olii Irvan, the differences between international and transnational significance is that transnational increasingly emphasizes the quantity, quality, practice, networks, and other relationships involving cross-border. Transnational can be said to be a form of international19. In other words, according to M. Siregar, transnational crime is an expansion and development of international crime known only in the form of an armed conflict between international law subjects. So that the main elements owned transnational crime more leads to three things, namely: 16 See General Explanation of Law No. 1 of 2006 on Mutual Assistance in Criminal Matters (Gazette of the Republic of Indonesia Number 4607). 17 Transnational crime coordination center(TNCC)Indonesia is a form of coordination centers that was born because of a common interest to handle terorisma regarded as a global threat by some Asian Pacific countries convened Bali Regional Ministerial Meeting on Counter Terrorism in Nusa Dua, Bali on 4 and February 5, 2004 in which the meeting was attended by 250 delegates from 26 countries in Asia Pacific 18 M. Olii Irvan, 2005, the narrowness of the World, The extent of Crime? A Brief About Assessing Transnational Crime, Criminology Indonesia Journal Vol. 4 No. July 14, 2016, p. 20 19 Ibid.
13
a. Conduct affecting more than one state;
b. Conduct including or affecting citizen of more than one state;
c. Means and method tranced national boundaries.20
So according to the United Nations Convention on Transnational Organized Crime
(UNTOC)21 in 2000, crime can be said to be a cross-country or transnational if:
1. Do in more than one country
2. Preparation, planning, directing, and monitoring is done in other countries
3. Involve organized crime group, in which the crime is committed in more than one
country
4. Given the serious impact for other countries to characterize the latest aspect of
transnational crime is a network of relationships, contacts and relationships
formed between the actors in various parts of the world 22
Broadly speaking, the United Nations in 1990 states that transnational crime is a
felony or a crime that crosses national boundaries, which include money laundering,
terrorism, theft of objects of art and culture, the theft of intellectual property rights,
environmental crimes, smuggling of firearms, aircraft piracy, pirate sea, people trafficking,
human trafficking, bank fraud, corruption and embezzlement of state funds.23
2.1.2 The Role of International Criminal Law in Handling The Transnational Crime
International world is that is part of a union of nations, the need for a binding rules in
order to provide certainty and a basis that by the state in doing both bilateral and multilateral.
In terms of criminal law need the legal certainty which should be implemented and obeyed
for the member states of the United Nations (UN).
One of them, bombings that occurred in the United States, Indonesia and other
countries in the world is an international crime which in law enforcement it can use the 20 M. Siregar, 2013, the International Criminal Police Organization (ICPO-Interpol) in International Law, accessible from repository.usu.ac.id on December 14, 2016 21 The United Nations Convention against Transnational Organized Crime, adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. It opened for signature by Member States at a High-level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and entered into force on 29 September 2003. 22 M. Irvan Olii, Op. Cit P. 23
23 Indonesian Transnational Crime Centre, accessible from tncc.go.id on Dec 20, 2016
14
principle of criminal law internationally by Hugo Grotius as follows “au dedere au punere”
ie against the perpetrators of international crime can be imprisoned by the state place (locus
delicti) occurred within the territorial limits of the country or handed over or extradited to
countries requesting that has jurisdiction to prosecute the offender, which meant in principle
that was Performers international crime can be imprisoned by the state of the place (locus
delicti) occurred within the territorial limits of the country.
The perpetrators of terrorism in Indonesia has been charged under the Terrorism Act
(Act No. 15 of 2003). UNTOC24 or often referred to as the Palermo Convention, because it
was signed in Palermo, Italy in 2000, is one of the most important instrument in the fight
against transnational crime. Indonesia has ratified this instrument through Law No. 5 Year
2009 on UNTOC. The Convention aims to promote cooperation in order to effectively
prevent and fight against transnational organized crime. The cooperation of countries in
efforts to overcome the problem of transnational organized crime can be performed on the
stages of arrest, detention for extradition, mutual legal assistance and transfer of sentenced
persons. UNTOC can be said as a result of the elaboration of legal instruments that have been
there before that regulate transnational crimes such as corruption, terrorism, people
smuugling, human trafficking, drug trafficking and illegal arms trade.25
When seen in practice for example in the law enforcement process terrorists in
Indonesia are still applying national criminal law is by using the Terrorism Act, while
criminal acts of terrorism that occurred is a transnational crime. According to the Convention
for the Prevention and Punishment of Terrorism in Geneva in 1937, the International
convention for the suppression of terrorism bombing in 1998, and the International
convention for the suppression of the financing of terrorism in 1999) to be able to conduct
investigations against perpetrators of criminal acts of terrorist financiers, network
organization, intellectual brain and logistic support which they originate from foreign
nationals outside the jurisdiction of Indonesia.26
In International Criminal Law, the element of substance use legislation applicable
national laws and procedural that can be implemented by a country that implements the law
24 The United Nations Convention against Transnational Organized Crime (UNTOC), adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. It opened for signature by Member States at a High-level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and entered into force on 29 September 2003. 25 Dr. Sefriani, SH, M. Hum. The Role of International Law - In Contemporary International Relations, Jakarta: PT RajaGrafindo Persada, 2016. P.287-289. 26 Prof. Dr. HR Abdussalam, Sik, SH, MH, International Criminal Law II, Jakarta: Restu Agung 2006
15
and the requesting country. The principle of “au dedere au punere” by Hugo Grotius, namely
the perpetrators of international crime can be imprisoned by the state of the place (locus
delicti) occurred within the territorial limits of the country or handed over to the requesting
state that possessed the jurisdiction to prosecute the perpetrators.
Trans-national crime is a crime across national borders in where transnational crimes
committed by offenders who come from a country or between countries that harm both
materially as well as the lives of people who have an impact or effect on interstate and
international, such as the incident terrorist bombing carried out by a trans-national crime,
where the crime perpetrators are derived not from only one country and harm caused both
soul strangers and Indonesia and material / assets other countries, then the terrorist crime is a
transnational crime.
Crimes committed by these terrorists remain in the legal process and legal substance
use despite national law in the implementation of procedural assisted by other countries.
Organized crime groups generally have headquarters in countries with weak law enforcement
system as safeheavens for the implementation of the transnational operation. Internet is not
only used to break into customer data but also used for other transnational crimes such as
washing, drugs, even terrorism.27
For Indonesia, transnational crime is already a significant threat, given the current
Indonesia ukan simply become a transit area for those crimes but have been specifically
targeted. Cross-border cooperation with various agencies in the country in various forms of
cooperation including the decision-making of the harmonization of national legal instrument
is needed.28
Transnational crime is a crime committed in more than one country, in which the
preparation, planning, direction and control is done in other countries involving organized
criminal group in which the crime is committed in more than one country, and a serious
impact on other countries. Bassiouni said that transnational crimes or transnational crime is a
crime that is having an impact more than one country, crimes that involve or impact on the
citizens of more than one country, and infrastructure, and the methods used beyond the
territorial boundaries of a country.29 Thus the term transnational crime intended to show their
27 CPF Luhulima, "Transnational crime in ASEAN: Threats to Regional Security", the ASEAN Cooperation to Tackle Transnational Crime In 2001, the Director General of ASEAN Cooperation Ministry of Foreign Affairs. Pages 197-199. 28 Dr. Sefriani, S.H., M.Hum. , Loc. Cit. 29 M. Cherif Bassiouni. (2012). Crimes Against Humanity in International Criminal Law . Vol 2.
16
real crimes nationwide (within the borders of the country), but in some ways related to the
interests of other countries. Thus, transnational crime is a felony or a crime that crosses
national boundaries. This concept was first introduced internationally in the era of the 1990s
in the meeting of the United Nations (UN) that addresses crime prevention.
In 1995, the United Nations identified 18 types of transnational crime, namely 30:
money laundering, terrorism, theft of art and cultural objects, theft of intellectual property,
illicit arms trafficking, aircraft hijacking, sea piracy, insurance fraud, computer crime,
environmental crime, trafficking in persons, trade in human body parts, illicit drug
trafficking, fraudulent bankruptcy, infiltration of legal business, corruption and bribery of
public or party officials.
The more extensive and sophisticated network of transnational crime has an impact on
the more difficult it was to make efforts to prevent and eradicate this crime by a country.
Therefore, In order for mutual legal assistance that is effective in terms of tracing, freezing,
confiscation and asset recovery should it be based Conventions or international agreement
that allows for mutual legal assistance. For this purpose, a boost to the country in order to
bind themselves to a treaty and / or regional agreements.31
2.2 Definition of MLA
A model of international cooperation in terms of prevention and combating
transnational organized crime takes many forms, including: extradition, mutual legal
assistance treaty in criminal matters (mutual legal assistance in criminal matters), the
agreement on the transfer of the proceedings, and so on. Among the models of the above
agreements, mutual legal assistance agreements (mutual legal assistance) in criminal matters
is a form of agreement which is essential in the disclosure of transnational crime.32
Mutual Legal Assistance (MLA) or a treaty of mutual legal assistance is an agreement
between the two countries for the purpose of information and exchange of information in an
30 Ninth United Nation Congress on The Prevention of Crime and The Treatment of Offenders which clearly described International Cooperation and Pratical Technical Assistance for Strethening The Rule of Law: Promoting The United Nations Crime Prevention and Criminal Justice Programme, was held in Cairo, Egypt, 29 April – 8 May 1995. 31 “Mutual Legal Assistance in Criminal Matters”, retrieved from: www.cifor.cgiar.org/ilea , accessed on November 9, 2016. 32 I Wayan Parthiana, Extradition in International Law and National Law Indonesia, Mandar Maju, Bandung, 1990, p. 11.
17
effort to enforce criminal laws. 33
According Siswanto Sunarso, Mutual Legal Assistance, which is an agreement which is
based on requests for assistance relating to the investigation, investigation, prosecution,
hearing before the trial court, and others, of the Requested State to the Requesting State.34
This assistance may take the form of check and identify people, places and things,
custody transfer, and provide assistance with the immobilization of the tools of criminal
activity. Assistance may be rejected by one of the countries (in accordance with the details of
the agreement) for political or security reasons, or if the criminal offense in question is not
punished the same in both countries. Some agreements can encourage assistance with legal
aid to citizens in other countries.35
MLA is basically a form of reciprocal agreements in criminal matters. MLA formation
backdrop of factual conditions that as a result of differences between the criminal justice
systems in some countries resulted in the emergence of inaction in the examination of the
crime.36 Often each country wanted to use its own legal system is essential to addressing
crime.
The same thing happened with other countries, so that the handling of the crime be
slow and tortuous. MLA emerged as one of the efforts to address and combat the evils that
are cross boundary (transnational), as MLA has coverage / scope is very broad, ranging from
the process of finding evidence or explanations regarding the crimes being examined until
execution decision. In detail Article 18 paragraph (3) UNTOC37 stated that :
Mutual legal assistance to be afforded in accordance with this article may be
requested for any of the following purposes:
(a) Taking evidence or statements from persons; (b) Effecting service of judicial documents; (c) Executing searches and seizures, and freezing; (d) Examining objects and sites; (e) Providing information, evidentiary items and expert evacuations; (f) Providing originals or certified copies of relevant documents and record, including
33 “Comparison between Extradition and MLA”, http.mekar-sinurat.blogspot.com, last accessed November 14, 2016.
34 Siswanto Sunarso, Extradition and Reciprocal Assistance in Criminal Matters: Instruments International Criminal Law Enforcement , (Jakarta: Rineka Copyright 2009), p. 133.
35 Ibid. 36 Elisatris Gultom, "Mutual Legal Assistance in Transnational Organized Crime", elisatris.wordpress.com, accessed on November 9, 2016. 37 The United Nations Convention against Transnational Organized Crime (UNTOC), adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. It opened for signature by Member States at a High-level Political Conference convened for that purpose in Palermo, Italy, on 12-15 December 2000 and entered into force on 29 September 2003.
18
government, bank, financial, corporate or business records; (g) Identifying or tracing proceeds of crime, property, instrumentalities or other
things for evidentiary purposes; (h) Facilitating the voluntary appearance of persons in the requesting State Party; (i) Any other type of assistance that is not contrary to the domestic law of the
requested State Party.
For comparison, Article 7 of the Vienna Convention of 1988 detailing the scope of the
reciprocal agreements in criminal matters, among other things:
a. obtaining evidence or statements from suspects; b. improve service on the court documents; c. carry out investigations and arrests; d. examining objects and locations; e. to provide information and evidence; f. providing documents, records including the original and copies of bank records,
financial, business or trade; g. identifying or tracing proceeds of crime, property or equipment or other items for
evidentiary purposes.
In national legislation, the need for the need to establish Mutual Legal Assistance in efforts to combat transnational crime organized, one of which is embodied in Article 44 and 44 A of Law No. 15 of 2002 on Money Laundering, as amended by Law No. 25 of 2003 (UUTPPU), which states:
In order to investigate, investigation, prosecution and examination before the court against the person or corporation that is known or reasonably suspected to have committed the crime of money laundering, to do regional and international cooperation through bilateral or multilateral forum in accordance with the statutory provisions.
From the things that have been stated above, it is clear that the MLA plays a very important in preventing and combating transnational organized crime, especially with regard to crimes that meet the principle of dual criminality38. The purpose of the principle of double crime (dual criminality) is a crime that serve as the basis to demand the (extradition) is a crime or a criminal act according to the legal system of the two parties (countries requesting and the requested state).
Provision of mutual assistance in criminal matters (MLA) in Indonesia contained in Law No. 1 Year 2006 on Mutual Legal Assistance in Criminal Matters. MLA regulation was created with the purpose to provide a legal basis for the Government of Indonesia in requesting and / or providing mutual assistance in criminal matters and guidance in making a
38 I Wayan Parthiana, Extradition in International Law and National Law Indonesia, Mandar Maju, Bandung, 1990, p. 29.
19
reciprocal agreement in criminal matters with foreign countries. As set forth in such provision, the MLA can be done based on an agreement, but in case there is no agreement then the aid can only be done on the basis of a good relationship is based on the principle of reciprocity.
Pursuant to Article 5 of Law No. 1 of 2006 paragraph (1) and (2) of the Mutual Legal Assistance in Criminal Matters, namely:
“(1) Assistance may be made under a treaty. (2) In case there is no agreement as referred to in paragraph (1), the assistance may be made
on either dasarhubungan based on the principle of reciprocity..”
MLA agreement can be done bilaterally and multilaterally. In terms of the agreement made in bilateral MLA, the negotiations on the content of these agreements is usually performed by an integrated team consisting of the Ministry of Foreign Affairs, Ministry of Law and Human Rights, the Police and the Attorney General. An agreement made by the two countries on the basis of the rules of MLA binding on both parties that must be obeyed and being implemented (the principle of “pacta sunt servanda”). Until now, the Government of Indonesia has had four (4) bilateral agreements in the field of
MLA39, namely:
1. Indonesia - Australia Treaty signed in Jakarta in October 27, 1995 and ratified by Act No.
1 of 1999 on Ratification of the Agreement Between the Republic of Indonesia and
Australia on Mutual Legal Assistance in Criminal Matters (Treaty Between The Republic
of Indonesia and Australia on Mutual Legal Assistance in Criminal Matters).
2. Indonesia – China Treaty signed in Jakarta on July 24, 2000 and ratified by Act No. 8 of
2006 on Ratification of the Agreement between the Republic of Indonesia and the People's
Republic of China on Mutual Legal Assistance in Criminal Matters (Treaty Between the
Republic of Indonesia and The People 's Republic of China on Mutual Legal Assistance in
Criminal Matters).
3. Agreement Indonesia - Hong Kong, signed by the Attorney General on 3 April 2008 and
ratified by Law No. 3 of 2012 on Ratification of the Agreement between the Government
of the Republic and the Government Special Administrative Region of Hong Kong
People's Republic of China on Mutual Legal Assistance in Criminal Matters (Agreement
Between The Government of the Republic of Indonesia and the Government of the Hong
39 This information is obtained from the Directorate General of Legal Administration, sub - Directorate for Mutual Legal Assistance in Criminal Matters and are so secret that not everyone can access it.
20
Kong Special Administrative Region of the People’s Republic of China concerning
Mutual Legal Assistance in Criminal Matters)
4. Indonesia - South Korea Treaty signed on March 30, 2002 and ratified by Act No. 8 of
2014 on Ratification of the Agreement Between the Republic of Indonesia and South
Korea on Mutual Legal Assistance in Criminal Matters (Treaty Between The Republic of
Indonesia and South Korea on Mutual Legal Assistance in Criminal Matters).
5. Indonesia – India Treaty, signed in India on January 25, 2011 and ratified by Law No. 9 of
2014 on Ratification of the Agreement Between the Republic of Indonesia and India on
Mutual Legal Assistance in Criminal Matters (Treaty Between The Republic of Indonesia
and India on Mutual Legal Assistance in criminal Matters).
6. Agreement Indonesia - Vietnam signed on June 27, 2013 and until now has not been
ratified. MLA agreement between Indonesia - Vietnam has been discussed in a plenary
meeting pda dated October 20, 2015 in the House of Representatives, is currently in the
process of enactment.
7. Agreement Indonesia - United Arab Emirates, signed on February 2, 2014 and are in the
process of preparation of the Bill Endorsement Submission to the Directorate General of
Legislation.
Besides the bilateral MLA agreements, then the current Indonesian government also has had
several multilateral agreements in the field of MLA, namely:
1. United Nations Convention Against Corruption (UNCAC)40 in 2003 which has been
ratified by Law No. 7 Year 2006;
2. United Nations Convention Against Transnastional Organized Crime (UNTOC)41 in
2000 which has been ratified by Law No. 5 of 2009;
3. Multilateral Agreement with the Government of Brunei Darussalam, the Kingdom of
Cambodia, Republic of Indonesia, Lao PDR, Malaysia, Union of Myanmar, Republic
of the Philippines, the Republic of Singapore, the Kingdom of Thailand and the
Socialist Republic of Vietnam, signed in Kuala Lumpur on 29 November 2004, and
was ratified by Law oF Number 15 Year 2008 on the Ratification of the Treaty on 40 In accordance with article 68 (1) of resolution 58/4, the United Nations Convention against Corruption entered into force on 14 December 2005. A Conference of the States Parties is established to review implementation and facilitate activities required by the Convention. Readers can retrieve it from: https://www.unodc.org/unodc/en/treaties/CAC/ 41 The United Nations Convention against Transnational Organized Crime, adopted by General Assembly resolution 55/25 of 15 November 2000, is the main international instrument in the fight against transnational organized crime. Readers can retrieve it from: http://www.unodc.org/unodc/treaties/CTOC/
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Mutual assistance in Criminal Matters (Treaty on Mutual Legal assistance In Criminal
Matters)42.
4. The parties involved in such agreements can request assistance to the Government of Indonesia in accordance with the agreed terms in the agreement, otherwise the Indonesian government may also request assistance to other countries that are party to the agreement. In principle, that the handling of trans-national criminal act requires cooperation with other countries. Law enforcement cooperation between countries such as these have proved decisive success of the enforcement of national laws against transnational crime. The success of the law enforcement cooperation in general would not be true if there is no bilateral or multilateral agreements in the submission of the offender or in cooperation investigations, prosecutions and trials. Prerequisite of the agreement are not absolute because without even then law enforcement cooperation agreement can be implemented based on the principle of reciprocity (reciprocity).
2.2.1 The Primary Setting Law of the Republic of Indonesia Number 1 Year 2006 on Mutual
Legal Assistance in Criminal Matters
Mutual assistance in criminal matters a request assistance with respect to the
investigation, prosecution and examination before the court in accordance with the provisions
of the legislation Requested State43.
The scope of this assistance, including requests an administrative investigation, relief
actions forceful measures, the freezing of property assets, and other assistance in accordance
with this law.
The provisions in the Law of the Republic of Indonesia No. 1 of 2006 on Mutual
Assistance in Criminal Matters does not give authority to enter:
a. extradition or transfer of person;
b. employ forceful measures in the form of arrest or detention with a view to extradition
or surrender of people;
c. the transfer of prisoners; or
d. case diversion44
As a principle in the provision of mutual legal assistance in criminal matters, can be
done based on an agreement. If there is no agreement then a help this can be done on the
42 Signed on 29 November 2004 by Brunei, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Vietnam and on 17 January 2006 by Myanmar and Thailand. 43 Law of the Republic of Indonesia No. 1 In 2006, Article 3 (1). 44 Ibid., Article 4.
22
basis of a good relationship is based on the principle of reciprocity 45.
The Rejection of Giving Mutual Legal Assistance in Criminal Matters, it can be done
if:
a. Criminal offense on the person considered as political crimes, a criminal offense
under military law, or the person has been released or granted clemency, or the person who
committed the offense if done in Indonesia can not be prosecuted.
b. Relating to sue or prosecute, if the grounds of race, sex, religion, nationality, or
political views, or would prejudice the sovereignty, security, interests, and national law.
c. If it is associated with a foreign country if the foreign country that does not provide
assurance that the aid could be used for handling cases requested, and guarantees for the
return of the exhibits.
d. The criminal offense if committed outside the territory of Indonesia, not a criminal
offense;
e. Criminal offenses committed by such person shall be sentenced to death;
f. Would harm an ongoing investigation, prosecution, examination before the court in
Indonesia which endanger the safety of persons, or burdening the country's wealth.46
Request for Mutual Assistance in Criminal Matters, can be distinguished, that:
a. The Government of the Republic of Indonesia as a party requesting assistance;
b. The Government of the Republic of Indonesia as the Requested Party Help.
Here is an analysis of the differences between the requests of mutual legal assistance in criminal matters is:
a. Request for Mutual Assistance in Criminal Matters, which Parties GoI in the Requesting Party.
In this regard, the Ministry of Justice, in filing requests for assistance, submitted directly or through diplomatic channels. This request was based on the request of the National Police, the Attorney General, or the chairman of the Corruption Eradication Commission (KPK) in the case of corruption.
The application for this assistance include:
1. Terms of application;
45 Ibid., Article 5. 46 Siswanto Sunarso, Extradition and Reciprocal Assistance in Criminal Matters: Instruments International Criminal Law Enforcement , (Jakarta: Rineka Copyright 2009), p. 151.
23
2. Help to find or identify the person; 3. Help to obtain evidence; 4. Aid to seek the presence of people in Indonesia; 5. Assistance to request the issuance of warrants in the State Asind in obtaining
evidence; 6. Help for the delivery of mail; 7. Help to follow the decision of the court; 8. Restrictions on the use of statements of documents and items of evidence; 9. Transit47
Terms of filing requests for assistance must contain the identity of the requesting institution, the principal issue, a summary of the facts, the provisions of the relevant legislation, a description of assistance and details of special procedures, as well as aid purposes, as well as other requirements specified by the Requested State.
Help to find or identify the man believed to be in a foreign country, that is alleged or suspected to have a relationship, or it can provide statements or other assistance related to obtaining evidence, if believed there is evidence in connection with the investigation, prosecution, examination the trial court, and a request to the foreign country, working in a foreign country making the statement or the submission of documents or other evidence that is in a foreign country.
Aid to seek the presence of people in Indonesia, for the sake of giving information, submitting documents, or other evidence, and can also provide testimony. If requested the presence status as prisoners of their own accord and are willing to testify, and at the request of a foreign country that person is placed in custody while in Indonesia and during the journey to or from Indonesia. Placement in custody, it is in the interests of bringing the person to Indonesia, detain that person while in Indonesia, return the person to the foreign country, or things that are related.
Any person who is not willing to meet requests for assistance can not be penalized under the law of Indonesia, and was given immunity and privileges, on protection of the rights of the person not to be prosecuted, tried, and convicted, sued in any civil, and are not required to provide information or other assistance relating to legal matters in Indonesia, should not testify and there was no authority to submit documents or whatever, according to national law.
Help to request warrants issued in foreign countries, including blocking, searches,
seizure, or other required in accordance with the provisions of criminal law in Indonesia. 47 Ibid., hal 152.
24
Help for the delivery of the letter is related to the completion of the process of
investigation, prosecution and examination before the court. This included a request to
follow a court decision which has permanent legal power, which may be the deprivation
of the confiscated goods, criminal fines, or the payment of compensation.
b. Mutual Assistance requests which the Government of Indonesia as the Requested Party
Requests for assistance, include:
1. The application for assistance;
2. Help to find or identify the person:
3. Help to get a statement, documents, and other evidence voluntarily;
4. Aid to seek presence in the requesting State;
5. For the purposes of transit for the offender to a country;
6. Help for search and seizure of goods, fines, or wealth;
7. Aid delivery of mail;
8. The issue of financing48.
The application for assistance to the Government of Indonesia in then any foreign country may request the assistance, either directly or can choose through diplomatic channels. The application for aid shall contain the intent to requests for assistance, the agency or the name of the official investigators, prosecutors, judges, a description of the criminal offenses, which include actions or circumstances alleged, the court ruling, details on the procedure or special conditions desired, either confidentiality or deadline. In the case of requests for assistance have met the requirements, the Chief of Police or the Attorney General to follow up. If the requests were rejected, the request for assistance was informed by the basic reasons for refusal to the requesting State.
Requests for help to find or identify the man, believed to be in Indonesia, there is a link with an ongoing investigation, prosecution, hearing before the trial court, and / or the person related to alleged or suspected with a criminal offense, then the request for assistance to obtain a statement, documents and other evidences, which are in Indonesia, can be obtained from an existing in Indonesia.
People associated with the process of investigation, prosecution, and the court, can not be forced to give a statement in Indonesia, if the Indonesian law forbids. In addition,
48 Siswanto Sunarso, Op. Cit., P. 153.
25
the person has the right to not be arrested, prosecuted and judged, by the law of the requesting State, the requesting state or civil sued.
In connection with the investigation, prosecution, and justice the person can provide testimony alone or accompanied advocate. Whereas in the case of submission of documents and / or other evidences can be done alone or represented by proxy and can be attended by official representatives of the requesting State. In case of a search, confiscation of goods, or property, which is located in Indonesia. The
requesting State may apply for assistance request search and seizure under the
authorization and / or a court order for the purpose of investigation or examination before
the court. Such requests must be attached to the search warrant and seizure warrant issued
by a competent authority in the requesting State.
The Chairman of the local District Court may issue a search warrant and the seizure
of an item, or items, if it is believed that the goods, objects, or such property allegedly
obtained from a criminal offense, has been used to commit or prepare an offense,
intended, or linked, or evidence, or used to impede the investigation, prosecution and
examination before the court49.
2.2.2 The Principles of Mutual Assistance in Criminal Matters
Mutual assistance in criminal matters, hereinafter referred help, the help with
investigators, prosecution and examination before the court in accordance with the provisions
of state legislation requested.50
Mutual Legal Assistance as mentioned above in the form of:
1. Identify and locate people;
2. Obtain statements or other forms;
3. Show documents or other forms;
4. Seek presence to provide information or assist investigations;
5. Delivering the letter;
6. Implement demand search and seizure;
7. Confiscation of proceeds of crime;
8. Assist the investigation;
9. Delivering the letter; 49 Siswanto Sunarso, Op. Cit., P. 155.
50 See Article 3 (1) of Law No. I Year 2006 on Mutual Assistance in Criminal Matters.
26
10. Permitaan carry out search and seizure;
11. Confiscation of proceeds of crime;
12. Regaining financial penalties in the form of cash in connection with criminal
offenses;
13. Prohibit transactions wealth, freeze assets that can be removed or confiscated,
or which may be required to meet the financial penalties imposed in
connection with criminal offenses; and / or
14. Other assistance in accordance with this law.
Agreement on mutual legal assistance and criminal matters must regulate the right of states parties, especially countries that are asked to refuse assistance. Rights asked states to provide assistance 'can be absolute in the sense of rejecting or not an absolute must in a sense be refused. The right of states to refuse that is absolute is based on the principles of general international law in an agreement relating to the prosecution or punishment offenses political background, military offense, ethnicity, race, religion and nebis in idem, as well as those related to sovereignty country.
Asked state right to reject requests for assistance that are not absolutely based on the principle of reciprocity. This principle is particularly crucial in the face of crime mentioned criminal offenses committed outside the territory of the requesting state (extra territorial crime) and not regulated by the state requested or the offenses are punishable by death.
In Law No. 1 of 2006 embraces some principles which are:
a. The principle of specificity, meaning given in the form of aid is according to who has requested his help and assistance in addition to the submission of a criminal, Pasa13 and 4;
b. The principle of reciprocity or based on good relations between the two countries Pasa15 paragraph (2);
c. The principle of ne bis in idem Article 6 letter b, is very general principle in criminal law where the offender can not be prosecuted / convicted for the second time in the same crime;
d. The principle of double criminality or double crime Article 6 letter c, meaning works that are done perpetrators should be a criminal offense for both countries;
e. The principle of non-racism Article 6 letter c, the Requested State may refuse a request for help if it concerns a crime based on race, ethnicity, sex, religion, nationality, or political views;
27
f. The principle of sovereignty Article 6 letter e, the Requested State may deny approval if the provision of assistance at the request of the aid will be detrimental to the sovereignty, security, interests, and national law;
g. The principle does not apply the death penalty requested State may refuse assistance when the threat of the offenses committed is the death penalty;
h. Including the principle of diplomatic immunity limited law article 17, which means that the agreement is in addition based on the principle of reciprocity but its implementation through diplomatic relationship in which the inherent rights also exist in diplomatic. Including notification of refusal to grant assistance;
i. As well as some of the reasons for refusal of assistance because of a criminal offense committed by: political crimes, except murder or attempted murder of the head of state / head of government, terrorism; or a criminal offense under military law.
From the classification principles used in Act No. 1 of 2006 on top can also be classified
according to the principles which receives a request for assistance and things can refuse
assistance.51
a. The principle that receive requests for assistance
1. The principle of reciprocity, is the internationally recognized principle as a
solution in the future cooperation between countries of both civil and
criminal issues, especially for countries that have not mernpunyai
Kerjasaama agreement. The essence of this principle is only a background
of good relations between the two countries
2. The principle of double Piminaliry or double crime. Prior to the cooperation agreement between the two countries should already criminalize crimes especially to be included in the agreement that will be requested assistance, the intention is that offense included in the crimes regulated by law in both countries.
Article 5 provides that:
“(1) Assistance may be made under a treaty.
(2) In case there is no agreement as referred to in paragraph (1), assistance can be
done on the basis of a good relationship is based on the principle of reciprocity.”
b. Rejecting the principle that requests help
51 Nobuala Halawa, Analysis and Evaluation of Law No. 1 Year 2006 on Mutual Relations in Criminal Matters. Paper loaded in the paper Postgraduate program Padjadjaran University Bandung, 2007, P. 6.
28
1. The principle of ne bis in idem, as a general principle of criminal law is an internationally recognized means of protection for the perpetrators to be prosecuted for a second time.
2. The principle of the death penalty, as the embodiment of the covenants on civil and political rights which oppose the death penalty. Although Indonesia is still recognize the death penalty in product legislation, its laws but implementation is very rare, such a provision is also what makes Indonesia can cooperate with other countries because, in principle, this principle does deny that the threat of punishment of the crime is the death penalty, but if there is a statement from the state which threatened the death penalty not to impose the death penalty, usually requests for assistance will be met.
3. The principle of non-racism, meaning that requests for assistance must be rejected as they relate race, sex, religion, nationality, or political views, political crimes and crimes regulated under military law.
4. The principle of sovereignty means, the requested State may refuse assistance when approving the request of The grant will be detrimental to the sovereignty, security, interests, and its domestic law .
Asked party's right to refuse assistance which is not absolute is to be rejected as
stipulated in Article 7 of Law No. 1 of 2006 on Mutual Assistance in Criminal Matters can be
translated sebaga following
“ Assistance Request denied if:
a. Help requests related to an ongoing investigation, prosecution and examination before the court or criminal prosecution against the person for a criminal offense is considered as:
1. political crimes, except murder or attempted murder of the head of state / head of government, terrorism; or
2. criminal offense under military law;
b. Help requests related to an ongoing investigation, prosecution and examination before the court against the perpetrator of any criminal offense had been released, were granted clemency, or have completed a criminal prosecution;
c. Help requests related to an ongoing investigation, prosecution and examination before the court or criminal prosecution against the person for a criminal offense if done in Indonesia can not be prosecuted;
29
d. Assistance requests submitted to sue or prosecute people for reasons of race, sex, religion, nationality, or political views;
e. Help approval on request The grant will be detrimental to the sovereignty, security, interests, and national law;
f. Foreign countries can not provide assurance that the requested assistance is not used to handling the case requested; or g. Foreign countries can not provide a guaranteed return that evidence obtained under
assistance if requested.”
As noted previously, based on the principle of reciprocity, the acceptance or rejection
of the request elp be relative, it can mean only the requests were to be rejected but because of
the good relationship between the two countries that aid can be given. As the condition in
which the two countries do not have an agreement on mutual assistance or in case of
threatened punishment is the death penalty.
Cooperation between countries is needed to facilitate the handling of the investigation,
prosecution and examination before the court on a pid'ana problems arising in the requesting
State and the requested State.
To provide a solid legal basis concerning cooperation between countries in the form of
mutual legal assistance in criminal matters necessary legal tools that can be used as
guidelines for the government of the Republic of Indonesia to make arrangements and carry
out cooperation assistance request from a foreign country. The law would be a law that
regulates some principle or principles, procedures and requirements to requests for assistance,
as well as legal proceedings show.
Right principles of mutual legal assistance in criminal matters in the legislation are
based on the provisions of the criminal procedural law, agreements made between countries,
as well as international conventions and habits. Agreements and international customs is a
source of positive international law52, through two sources of this law the court can develop
themselves to participate in the international legal order. Legal order in question is a legal
social order in relations among countries or the international community regularly and give
leeway to the court to find or establish new legal norms clan develop international law.53
Help reciprocity in criminal matters can be done based on an agreement and if there is no
agreement, then the aid can be done on the basis of a good relationship. 52 Yudha Bhakti, International Law Anthology, Alumni, Bandung, 2003, P. 70 53 Ibid, him 71
30
These laws regulate in detail the request of mutual legal assistance in criminal matters
of the Government of the Republic of Indonesia to the State and vice versa, among others
concerning the filing of requests for assistance, demand requirements, help to locate or
identify persons, assistance to obtain evidence, of aid to seek the presence of people.
This law also provides the legal basis for the Minister responsible in the field of law
and human rights as the official authority (Central Authority) which acts as the coordinator of
a request of Mutual Legal Assistance in Criminal Matters with foreign countries as well as
the handling of the request mutual assistance in criminal matters from a foreign country.54
The form of assistance can be given: identifying and locating people, but does not
include delivery of the perpetrators because they have an extradition treaty; obtain statements
or other forms; show documents or other forms; seek the presence of people to provide
information or assist the investigation, meaning only as a witness; submit a letter; execute the
request search and seizure; confiscation of proceeds of crime; regain pecuniary penalty in
connection with criminal offenses; prohibit transactions wealth, freeze assets that can be
removed or confiscated, or which may be required to meet the financial penalties imposed in
connection with criminal offenses; seeking the wealth that can be released, or that may be
needed to meet the financial penalties imposed in connection with criminal offenses; and / or
other assistance in accordance with this law55.
In the development of science and technology, especially the development of
transportation, communications, and information resulting from one country to another as if
indefinitely so that the movement of people or goods from one country to another is easy fast
clan. This resulted in the development of crime and also increasingly sophisticated modus
operandi so that countermeasures in need of cooperation among country to another country56.
2.2.3 Forms and Implementation Assistance
In the mechanism of MLA, a country will appoint an institution on behalf of the
government of the country concerned, authorized to receive or file a formal request for
extradition and Mutual Legal Assistance and Extradition responsible for the process and the
Mutual Legal Assistance 57.
In the implementation of MLA, Minister of Justice and Human Rights as a central 54 The Explanation of Law Number 1 Year 2006 on Mutual Legal Assistance in Criminal Matters
55 Article 3 (2) of the Constitution of the Republic of Indonesia Number I of 2006 on Mutual Assistance in Criminal Matters
56 Yudha, Op.Cit, P. 4
57 International Cooperation in Criminal Matters ", stredoall.blogspot.com, accessed on November 12, 2016.
31
authority ( central authority ) may ask the competent authorities to carry out a police action.
This form of search, blocking, seizure, examination of letters, and information retrieval.
Instead, the Ministry of Justice can refuse cooperation MLA requests from other countries in
terms of their proposed action would damage the national interest or related to political cases
or prosecutions related to ethnicity, religion, race, nationality, or political stance of a person.
Communication in cooperation MLA can be done, either through diplomatic channels or
through the Central Authority. There are also countries that cooperate MLA only through
diplomatic means, such as Malaysia58.
The Contain of The Request:
1. Request for assistance must contain:
a. description of the purpose and nature of the request the assistance requested;
b. identification of the person, body or agency making the request; c. includes a description of the nature of the criminal matter including a brief
description of the relevant facts, law, and criminal penalty imposed; d. include a statement showing the final status of the investigation or proceedings; e. include statements that describe the desired deadline to execute the request.
2. Requests for assistance, in so far as it is relevant and should be possible to load also:
a. description of the problem of people who will be examined, where possible including the questions asked by the Requesting Party against the person;
b. in terms of aid under Article 10:
i. description of the problem of people who will be examined, where possible including the questions asked by the Requesting Party against the person;
ii. description of the documents, records or evidence produced and as relevant, a description of the appropriate person to be asked to provide such information;
c. in the case of requests for assistance under Article 11 or Article 12, it should be mentioned information on the benefits and costs given for the trip to the first party;
d. in the case of requests for assistance under Article 15 or Article 16, description of goods sought, and as relevant, on the location of the goods are located;
e. in the case of requests for assistance pursuant to Article 16
i. statement on which the conviction of the Requesting Party that the proceeds of crime within the jurisdiction of the Requested counterparties; and
58 Ibid.
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ii. court decisions, if any, can be taken and a statement regarding the status of the decision;
f. in the case of requests for assistance for the return of proceeds of crime or have been found, the necessary statement of special arrangements under Article 16, paragraph 4;
g. statements regarding the procedures or the specific requirements of the Requesting Party, or which may affect the demand, covers the details should be given on the issue or any other form of information, evidence, documents or items which are required to be submitted;
h. statements, if any, by the Requesting Party concerning the confidentiality of the request and the reasons therefor;
i. in the case of officials of the Requesting Party intends to travel to the Requested Party with regard to demand, information concerning the purpose of the official visit, the time period and setting his journey; and
j. any other supporting information, evidence or documents are required, or may assist, the Requested Party shall fulfill the request.
3. Request, any supporting documents and communications made in accordance with this Agreement must be in the language of the Requesting Party and accompanied by a translation into the language of the Requested Party or into English.
4. If the Requested Party considers that the information contained in the request is not sufficient to meet the demand for assistance in accordance with this Agreement, the Requested Party may request additional information.
5. Requests should be made, in writing unless the Requesting Party may accept a request in another form in urgent circumstances. In circumstances like this, a written request must be determined within thirty days (30) days unless the Requested Party agree to another time period.
2.2.4 Fees and Allowances
1. The Requested Party shall bear the cost to meet requests for assistance, except that the requesting party must bear the costs as follows:
a. costs associated with penganggkutan any person to or from the territory of the Requested Party, and any wages, allowances or expenses payable to that person while in the Requesting by works of the Requesting Party must first pay to that person in part or all of the benefits or costs mentioned above ,
b. costs associated with the transport of prisoners officer / prison guards or officials.
c. and wage costs imposed by the Requesting Party to demand solutions.
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2. If it turns out that the execution of the request incurs costs are greatly exaggerated, the parties will negotiate to determine the terms for granting the relief requested.
2.2.5 Term and termination of Agreement
While the period and the expiry of the period for Legal Assistance in Criminal Matters described in Article 59 of MLA Law:
1. The agreement entered into force on the date of the last administration of the secrets of the Parties that the respective national requirements for the entry into force of this Agreement have been fulfilled.
2. This agreement will apply to agreements made both before and after the date of entry into force of this Treaty.
3. Either party may terminate this Agreement at any time by written notification. Termination will take effect six (6) months after the date of notification.
4. Termination of Mutual Legal Assistance Treaty in Criminal Matters will not affect the completion of any ongoing activities approved by the Parties under this agreement.
The explanation above would expose transnational crimes as well as the importance
of the agreement Mutual Assistance in Criminal Matters, the concept follows an
agreement with the procedures and mechanisms that must be fulfilled in order to achieve
this goal better than the agreement itself.
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CHAPTER 3
Problems in the Implementation of Mutual Legal Assistance in Criminal
Matters
3.1 Characteristics of Indonesia which Supports High Oppurtunities in
Transnational Crimes
The geographical location of Indonesia is strategically located in the
path of world trade (Indonesia has the fourth straits that are the main line of traffic in
world trade, namely: the Strait of Malacca, Sunda Strait, the Lombok and Makassar
Straits; has a population of very large (more than 240 million people ); and has
abundant natural resources).
Strategic geographical location and increased mobility of people in Indonesia
can pose problems related to extra-territorial yuridisksi a country. This can occur
when the problem relates to issues of criminal offenses59 and trigger a transnational
crime or a crime committed in more than one country, in the which the preparation,
planning, direction and control is done in other countries involving organized criminal
group in the which the crime is committed in more than one country, and a serious
impact on other countries .. transnational crime involving Indonesia could have an
impact such as60 :
1. Weaken the legal system, because if it carried out by organized criminal group
can threaten the integrity and independence of law enforcement with influence
the process of law enforcement, including the judge's decision that the
objective and fair.
2. Damaging the economic system, because in general, transnational crime aimed
at getting money and other material gains a significant amount of potentially
disruptive monetary control (inflation, the money supply) and fiscal policy, tax
revenue, the integrity of financial institutions, and healthy competition.
59 Yudha Bhakti, Criminal Jurisdiction in International Law, Bandung , 2006, page 86. 60 http://www.bphn.go.id/data/documents/lit_2012_-_7.pdf accessed on January 16, 2016.
35
3. Disruption of social and cultural systems where transnational crime is growing
rampant in society and rampant uncontrolled, so that people become
permissive to lawlessness and the worst did not dare to defend truth and
justice.
4. Destructive to the government, political life and state administration for
organized criminal groups will seek to influence the decision of the executive
and legislature to secure its existence.
5. Threat of state sovereignty as organized criminal group can control their
activities outside the jurisdiction of the country without the need to exist in the
country concerned. Cross border activity is less likely did not escape the reach
of the state apparatus, and the crimes committed will have an impact on the
threatened state sovereignty.
Such conditions can provide the threat of transnational crimes for Indonesia. In the
field of law, there is a mechanism created to combat transnational crime, namely the
mechanism of Mutual Legal Assistance in Criminal Matters (MLA). MLA is a mechanism in
the form of multilateral or bilateral agreements and uses the principle of reciprocity as the
basis for the holding of an inter-state agreement. Birth of the MLA Act provides a new
container for international law in regulating the procedure of mutual legal assistance in
criminal matters. MLA, the which is an agreement roomates is based on requests for
assistance Relating to the investigation, investigation, prosecution, hearing before the trial
court, and others, of the Requested State to the Requesting State. But of all setting procedures
and mechanisms contained in the Act MLA was still experiencing some constraints, namely
the implementation of MLA mechanism itself. According to the National Law Development
Agency (BPHN)61 , in the implementation of the mechanism of MLA are problems
frequently encountered in the submission of MLA requests to other countries, including:
1. There are different laws in Indonesia with other countries;
2. Format MLA request letter submitted to the requested state is not as expected by the
Requested State;
61 National Law Development Agency (BPHN) is a supporting element main tasks the Ministry of Law and Human Rights in the field of coaching the national law which is under and responsible directly to the Minister of Justice and Human Rights.
36
3. The lack of data or document to support the MLA request letter requested by the
Requested State;
4. It takes a very long time and cost a bit in terms of a request MLA to asset confiscation
of proceeds of crime to the Requested State;
5. The process is complicated in terms of asset confiscation of proceeds of crime
committed through MLA requests;
6. Requested uncooperative countries to follow up the request MLA from Indonesia;
7. The number of countries where assets are hidden to corruption did not cooperate or
did not respond to requests for MLA;
8. Lack of experience for Indonesia to seize assets to corruption;
9. The absence of MLA agreement with the Requested State;
10. Lack of coordination, both with central authority Requested State or with relevant
agencies in Indonesia;
11. The length of the process because it must go through the Ministry of Foreign Affairs
as a diplomatic channel, it will be faster if the MLA or extradition requests can be
submitted directly from the Central Authority to Central Authority.
A model of international cooperation in terms of prevention and combating
transnational organized crime takes many forms, including: extradition, mutual legal
assistance treaty in criminal matters (mutual assistance in criminal matters), the agreement on
the transfer of the proceedings, and so on.
Among the models of the above agreements, extradition treaties62 and agreements
bantual reciprocity in criminal matters is an agreement which is very important in the
disclosure of transnational organized because it has been shown to be effective as a way to
prevent, arrest, and sentencing criminal against the perpetrators of transnational /
international dimensions.63
Mutual Legal Assistance in Criminal Matters atan Mutual Legal Assistance in
Criminal Matters is the granting of legal aid is based on a legal basis formal, usually in the
collection and submission of evidence, carried out by the authorities (law enforcement) from
62 According to Article 1 of Law No. 1 of 1979 on Extradition, Extradition is the surrender by one state to the state requesting the submission of a person suspected or convicted of a crime outside the country leading up to and in dalamyurisdiksi territory requesting the handover for authorities to prosecute and convict 63 Romli Atmasasmita, Prospects for Regional Cooperation / International in Combating Money Laundering in Indonesia, the article in the Journal of Padjadjaran, No. 1, 1997, p. 65
37
one country to the authorities (law enforcement) in other countries, in response to requests for
assistance. The phrase "reciprocal" indicates that legal aid is given with the expectation that
there will be no reciprocal assistance in a certain condition, though not always reciprocal
becomes a prerequisite for granting aid.
Mutual legal assistance is effective in terms of tracing, freezing, seizure, confiscation
and asset recovery should it didaarkan Conventions or international agreement that allows for
mutual legal assistance. For this purpose, a boost to the country in order to bind themselves to
a treaty and / or regional or bilateral agreements.
Exercising opportunities in international cooperation mechanisms to effectively MLA
can be done by:
1. Increased understanding of the process of criminal justice procedures
in each country, especially in criminalizing an act carried out in a
country by promoting the principle of mutual respect legal procedures
that have been taken by a country in criminalizing an act that can be
categorized as unlawful.
2. The need for support and provide assistance to the knowledge of how
the procedures and mechanisms for mutual assistance in a country, in
particular the role of central authority can be understood. Formal
procedures required can also build domestic inter-agency cooperation
(between law enforcement and legal officer at the central authority), so
as to create the best pattern implementation of international
cooperation in the field of mutual assistance.
3.2 Procedural Barriers and Coordination in Indonesia
The mechanism of MLA itself turns encountered several procedural barriers to
cooperation and coordination in handling a necessary assistance, both in the case of incoming
or outgoing MLA MLA. Starting from differences in legal systems up to inaction response
from the Central Authority (CA) that was responsible in handling a case.
Below are some examples of cases of the results of the implementation mechanism of
MLA in the realm of international law which is evidence of the successful, unsuccessful, and
38
the resistance of pengiplementasian MLA mechanism itself along with an explanation. All
information written obtained from interviews two staff on handling of Mutual Legal
Assistance in Criminal Matters which is Dina Juliani and Saiful Bahri were both working at
the Directorate General of Legal Administration, Sub-Directorate for Mutual Legal
Assistance in Criminal Matters, Ministry of Justice and Human Rights. All written
information obtained from the sub-directorate of Mutual Legal Assistance in Criminal
Matters, Ministry of Justice and Human Rights because according to Law No. 1 Year 2006
on Mutual Legal Assistance in Criminal Matters provides the legal basis to the Minister
responsible in the field of law and human rights as the official Central Authority as the
coordinator of a request Mutual Legal Assistance in Criminal Matters to foreign countries as
well as the handling of requests Mutual Legal Assistance in Criminal Matters of foreign
countries. In his capacity as CA then, foreign countries that request assistance to the
Government of Indonesia and vice versa must pass through the Ministry of Justice and
Human Rights as the entry point, for the next CA that will proceed with the request to other
related institutions by first ensuring that the requirements predetermined been met. The
results of data collection was conducted on January 17, 2017, at 13:00 pm, and placed on Ex-
Sentra Mulia Building, 17th level on Consultation Room at Ministry of Justice and Human
Rights, Kuningan, South Jakarta.
CASE POSITION:
1. Mutual Legal Assistance in Criminal Matters between the Government of Indonesia
and the Government of Viet Nam
Governments of Indonesia and Viet Nam have signed a multilateral cooperation
agreement on Mutual Legal Assistance in Criminal Matters with several other Asian
countries later in the ratification of the Law of 2004. Nno.15 (ASEAN MLA
TREATY)
The Government of Viet Nam requested MLA assistance to the Indonesian
government regarding the case of Viet Nam-flagged ship detained in Indonesian
waters with allegations of Illegal Fishing conducted in 2013. At first, Vietnam flagged
ship was found in Indonesian waters, more details it was in the islands of Batam and
doing Illegal Fishing activities, with the information was then Navy captures both
vessels.
39
According to the Penal Code Article 2 states: "The provisions of criminal law with
Indonesia apply to everyone who is doing something criminal offense in Indonesia."
And Article 5: "The provisions of the criminal legislation Indonesia applied for
citizens outside Indonesia ", therefore for the then Navy prosecute cases of illegal
fishing carried out by the Viet Nam-flagged vessels in the territory of Indonesia.
Whereas in accordance with Article 69 and Article 76 of the Fisheries Act number
45 of 2009, for vessels conducting illegal fishing activities should be prosecuted and
decided to be destroyed or auctioned and no option to redeem the ship. To have it
done at the court hearing against the ship and it was decided the ship was auctioned
and fell on penalties to the respective captains of Rp. 2 billion Rupiah or confinement
penalty of 6 months imprisonment. For then, the assets of the ship auction results are
used to repatriate the entire crew of both vessels to countries asalanya except the
Master ships still being held in Indonesia, and to remind, the assets for later then
included in the State Treasury.
The Government of Viet Nam sends Request Illegal Fishing MLA related cases
committed by two vessels Viet Nam in Indonesian waters that contain the demand for
an investigation into the arrest of the two vessels Viet Nam including whether there is
a person or organization who paid a deposit to make up the ship (if it being caught in
Indonesia territory). Because there are known an Indonesian citizen (citizen) with the
initials AP which has conducted the Crime of Fraud and acts as a broker of both ships
Boat Vietnam where the owner has made a transaction of funds of 3.9 billion Dong on
the redemption of the two ships owned by citizens of Viet Nam. For then it can meet
the principle of dual criminality.64
In addition the Government of Viet Nam also asked for help to get Identity, legal
records (Crime and Courts) and the data on immigration in the name of AP (initials),
Passport Number T33xxxx, and resides in Batam Centre, Riau Islands. And licensing
for the Viet Nam authorized officer handling the case can perform retrieval testimony
to the AP.
64 A crime that serve as the basis to demand the (extradition) is a crime or a criminal act According to the legal system of the two parties (countries requesting and the requested state).
40
Responding to the then Government of Indonesia through the CA sends a good
response and a third grant MLA requests sent by the Government of Viet Nam.
At the same time, the Government of Indonesia must deal with other cases
involving Indonesia and Viet Nam, Ship Piracy Case committed by 8 citizens in the
territorial waters of Viet Nam. Then, the Government of Indonesia through the CA
sends MLA request to the Government of Viet Nam to extradite perpetrators 8 citizen
ship hijacking to Indonesia. Unfortunately, the Indonesian government did not get a
good response on its MLA request to the Government of Viet Nam.
The request was rejected by the Government of Viet Nam to the reason for the
disparity in the handling aid agencies MLA. What is meant in the differences in the
handling of aid agencies of MLA is its Cental Authority or authorities in handling the
MLA thing. CA Indonesian side is the Ministry of Justice and Human Rights on
behalf of Republic of Indonesia, while the Viet Nam CA is the Ministry of Public
Security (Ministry of Public Security). Hence differences in the handling of aid
agencies the MLA, the Party of Viet Nam does not allow the Ministry of Justice into
CA Indonesian side in case of return 8 Indonesian citizens (extradition) of the
jurisdiction of Viet Nam. For later declared MLA request was rejected.
Please note by Artice 4 MLA ASEAN Treaty has been ratified by both the
Indonesian and Viet Nam mention:
1. Each party shall designate a Central Authority to the make and receive
requests pursuant to this Treaty;
2. The designation of the Central Authority shall be made at the time of the
deposit of the instrumet of ratification, acceptance, approval, or accession to
this Treaty;
3. Each Party shall expeditiously notify the others of any changein the
designationof its Central Authority;
4. The Central Authorities shall Directly communicate with one another but may,
if they choose, communicate through the diplomatic channel.
In verse 1 found an explanation about the creation or designation of the
authorities as the CA which is the obligation of every country that has ratified the
41
treaty. Therefore the CA designation it is the duty of every country to ratify the
treaty, every country reserves the right to appoint agency or institution or agency
set up specifically to handle the request or assistance MLA. Because whatever is
the CA authority of a country will work with the name of the State is not the
agency nternally itself.
In response, the Indonesian side is not helped and feel very disappointed
because the basis of the aid MLA between the Government of Indonesia and Viet
Nam is the principle of reciprocity65. And according to CA Indonesia, the Viet
Nam does not give good feedback on the extradition request and needs to be
recalled that the previous Indonesia has granted the request of a party MLA in the
case of Vietnam Illegal Fishing.
Therefore, the Government of Viet Nam now has indirectly gives the distance
between Viet Nam and Indonesia, as well as creating a bad image in the provision
of MLA with the principle of reciprocity. It also inhibits the process of
investigating the AP on Second Line of Response (SLOR) newly sent by the
Government of Viet Nam to the Government of Indonesia to ask for help MLA
second related to the case of illegal fishing, because until now CA Indonesia still
withhold aid to the the second time it (SLOR Illegal Fishing) to the State of Viet
Nam concerning the refusal made by the Party of Viet Nam to the request for
extradition from Indonesia.
Because of that, CA Indonesia is still considered to answer SLOR containing
MLA requests for assistance for the second time in the case of Illegal Fishing by
priority state interests. Until now there has been no settlement of the case and the
status is still on process.
2. Mutual Legal Assistance in Criminal Matters between the Government of Indonesia
da n Government of Singapore
Governments of Indonesia and Singapore have signed a multilateral cooperation
agreement on Mutual Legal Assistance in Criminal Matters with several other Asian
countries later in the ratification of the Law of 2004. Nno.15 (ASEAN MLA TREATY)
65 The principle of reciprocity or based on good relations between the two countries
42
Starting from MLA assistance request letter being sent by the Government of
Singapore to Indonesia Government the alleged murder of a citizen of Singapore conducted
by two Singapore nationals and one Indonesian citizen within the jurisdiction of Singapore.
FB (alias), who is Indonesian citizen, known to have fled back to Indonesia via
Batam. And therefore in compliance with the principle of dual criminality. Singapore Police
Authority held a coordination that is in demand from the Singapore authorities with the police
in Bintan Island for interograting FB in Tanjung Pinang, Bintan Islands through personal line
phone upon request from Interpol in Jakarta. Based on such coordination is known that there
is dated February 3, 2014 at around 11:00 pm, police Brigadier Damanik, one of Bintan
Police Officer, noting FB statements in police reports related to violations committed by the
FB for the victim. Additionally FB has also indicated that he did not intend to return to
Singapore to attend the hearing.
CA Singapore for the next send request assistance to Indonesia to bring Brigadier
Damanik to testify as a witness in a criminal trial attorney CI and CU (as witnesses associated
with a given statement Febri Tanjung Pinang in Bintan to the police). The trial hearing
scheduled for October 25 until November 4, 2016.
The respond to that, Toto Wibowo (Wa Dir General Criminal Investigation Police
Riau Islands), Helmi Kwarta Kusuma Putra (Wa Dir Special Crime Investigation Police Riau
Islands), Yanuari Insan (Div Hubinter), W. Romi S (Panit Subdit II Ditreskrimsus ), Anak
Agung Gede Putra Aditya (Div Hubinter), M. Ariyono Wibowo (Ba Subdit 2 Ditreskrimsus),
John Frenky Damanik (Police Bintan), Rini Sukarsi (Ps. Kasubagbinops), Sugeng F. Hartanto
(Kasubdit Lantaskim Kanim Class I Batam ), Iman Setiawan (Immigration Office Class I
Batam), Douglas Simamora (Kanim Class I Batam) and with MLA team organize a
Casework Meeting in purpose to discuss the case.
Based on these casework meetings note that according to Damanik, the Singapore
Police Force took testimony FB participate in Tanjung Pinang and Damanik has recorded
interviews FB testimony. And therefore such informal coordination Singapore police had
passed his authority to take the testimony of the citizen without consent and legal procedures.
Also, Riau Islands Police assess the actions take testimony from citizens who conducted by
the Singapore Police Force inappropriate because past have authority over the country. This
will be taken seriously by the police. And finally, the International Relations Division of the
43
National Police (Divhubinter)66 will soon be looking for information on oral orders to
Brigadier Damanik Interpol for taking this testimony has no legal basis.
Riau Local Police assess, Brigadier Damanik can not be used as a witness in
Singapore because it does not comply with Article 1, paragraph 26, Code of Criminal
Procedure, "the witness is a person who can provide information for the purpose of
investigation, prosecution and trial of a criminal case that he heard him, he sees himself and
he experienced his own ". Besides, Riau Islands Police also stated, Damanik can not serve as
a witness investigator / witness verbal verbal, because there is no legal basis to conduct an
investigation on Febri in Indonesia.
After casework Meeting closed it can be concluded that the MLA request assistance
from the Government of Singapore to the Indonesian Government was rejected because of
the different legal systems in force in the country concerned, in this case is Indonesia. The
Indonesian side found any violations committed by their party is taking testimony Singapore
citizen without permission and legal procedures. According to the Code of Criminal
Procedure Article 6 investigator is Police Officer of the Republic of Indonesia and civil
servants certain given special authority by the Act, it is clear that the permissibility of other
agencies moreover the agencies who participated in the investigation.
Besides the Criminal Procedure Code has clearly explained the definition and
importance of a witness in the Criminal Code Article 1, paragraph 26 because Damanik did
not see it directly, do not hear directly, and does not experience it and for that reason the
MLA request was rejected in favor of the Law.
3. Mutual Legal Assistance in Criminal Matters between the Government of Indonesia
da n the Hungarian government
Mutual Legal Assistance in Criminal Matters between the Government of Indonesia
and the Government of Hungary based on the participation of countries which are members
of the United Nations (UN) is the United Nations Conventionn against Transnational
Organized Crime (UNTOC).
66 The principle of reciprocity or based on good relations between the two countries
44
The Indonesian government to submit an assistance request to the Hungarian
Government MLA associated with Bank Fraud cases in which included a request for
assistance in the form of an official inspection Bank E in Hungary as a witness of the case
Frus BANK.
The mechanism of the Mutual Legal Assistance in criminal matters in this case to use
informal mechanisms, namely from the police to the police. After getting the information that
if it were sufficient, they communicate and coordinate to obtain information from officials of
the Bank.
E Bank officials in Hungary is willing to provide or open its bank secrecy to provide
more accurate information related to the Indonesian police investigation process ongoing in
Indonesia on a case which led to the PT. WS located in Jakarta, Indonesia lose up to
379,972.75 USD. But Hungary Bank Official based on Hungari Banking Regulations can not
easily provide privacy information and give it to the Indonesian police, therefore, The
Budapest police officer then needs the MLA request letter provided by the Government of
Indonesia in the delivery of assistance requests banking information related to the police
Budapest, Hungary.
In response, the Indonesian police immediately sent a formal MLA Request letter to
the Police Budapest. In an official letter of request for assistance MLA, there are some basic
demand which contain all of the information which at that time the investigators of
Directorate of Special Economic, Jakarta Police are conducting investigations of alleged
criminal acts of fraud committed through electronic media and or money laundering and or
transfer of funds illegally which occurred on December 3, 2015 that caused losses of USD
379,972.75 worth of funds owned by PT. WS. In an official letter of request for MLA was
also, stated that the contents of the request for assistance MLA is to examine a Bank Officers
E in Hungary as a witness to obtain information from the parties concerned related with the
investigation of a case in Indonesia, namely the account number and update account holders
receive transfer of funds from PT WS, along with the identity of the owner of the rekrening.
It took less than 2 (two) years for the return of assets to the PT. WS in Jakarta,
Indonesia. But from this case can be concluded that the Indonesian Police and the Budapest
Police have tried as much as possible and be able to communicate and coordinate every step
45
required under existing procedures, especially in the stage of the search and return of assets in
this case.
4. Other Cases:
Below are the cases which completion is assisted using MLA mechanisms, including:
• The case of Mary Jane Veloso (MJV), is a Bulacan, Philippines
woman aged 31, the police arrested at Adi Sutjipto Airport,
Yogyakarta, on 25 April 2010 for her efforts in smuggling 2.6
kilograms of heroin. In October 2016, MJV sentenced to death by the
Sleman District Court on charges of violating Article 114 paragraph 2
of Law No. 35 Year 2009 on Narcotics. During the process of
investigation and inquiry, both Philippine CA and Indonesian CA
communicate and coordinate well, not only is it twice the CA
Indonesia and CA Philippines held casework meetings held at the
Ministry of Justice and Human Rights, House of Ex-Sentra Mulia,
Kuningan, South Jakarta, to discuss the case and both interests that are
related to the urgency of the request from Philippines in a letter that he
has been sent the MLA requests for assistance related to the cases
involving MJV, such as the outcome, the charges, and incriminating
evidence of MJV. Until now, requests for assistance sent from the
Philippine has been largely accepted by the Indonesian side, although
a portion of the request was rejected on the grounds of Indonesian
State Priority.
• Case of Jessica Kumala Wongso, this case is one case that is often
showed up in the media \ throughout 2016, Jessica Kumala Wongso, a
conversation in social media and the news after her friend, Wayan
Mirna Salihin (27) died on January 6, 2016 after drinking the cyanide
cofffee ordered by Jessica for two friends that Hani and Mirna. On
May 17, 2016, Chief Prosecutor to restore files that have not been
lengka p for the fourth time to be completed by the investigators Polda
Metro Jaya. S esuai Prosecutor requests in file number B-3599 / O.1.1 /
Epp.1 / 05/2016 is a request to the investigator to attach an answer
from Assistant Secretary of the Office of Mutual Legal Assistance and
46
Extradition Australia according to the letter sent by the Director of
Central Authority and International Law, Kemenkumham No.
AHU.5.AH .12.07-54 dated 27 April 2016 related to the search and
seizure of computers, medical records and bank records through the
MLA mechanism. The CA Indonesia has sent a support request MLA
to the CA Australia in accordance with the direction of the prosecutor
for the sake of completeness of documents from Jessica, but
unfortunately Australian CA responded that it had not yet able to grant
the request MLA sent by the Indonesian CA about the searches and
seizure of computers, medical records and bank records to complete
the file Jessica.
From the examples above case which has already implemented one of the
International Law Mechanism, nameld as the mechanism of MLA, it turns MLA in its
application very useful and helpful in solving cases that are transnational or cross country,
especially in the phase of the investigations and investigations in the collection of evidence
and return of state assets is an achievement itself for the Indonesian State, if it succeeds in
achieving all the goals and ideals of this country.
In its implementation , This mechanism does not always run smoothly and
successfully, from the example above case we can see that there is a miraculous cases MLA
request was not all granted, or even rejected, such as for example the case of Batam and
Singapore. The failure MLA simply is not only caused by the different legal systems in each
country who are dealing, but also of coordination and cooperation, and communication of the
authorities and responsible at every stage of both informal and formal way.
47
CHAPTER 4
4.1 Analysis of The Effectiveness of Mutual Legal Assistance in Criminal
Matters And Its Relationship With Indonesian National Law
Cooperation in the Mutual Legal Assistance in Criminal Matters essential for
the eradication and enforcement of cross-border crime (transnational). Crimes such as
cross-border human trafficking, money laundering, cyber crime and illicit trafficking
in narcotics and psychotropic substances are the real threats to the people of
Repuublic of Indonesia. Indonesia as a state party to the conventions of transnational
crime / international commitment to combat such crimes. In addition to combating
cross-border crime, cooperation, MLA is also needed by the Indonesian government
in law enforcement corruption cases which is currently the priority of the Government
of Indonesia. The tendency of the suspects had fled the evidence or proceeds of crime
abroad, the presence of witnesses abroad are very large in corruption. Therefore,
mutual cooperation assistance to obtain the evidence and return the proceeds of crime
are indispensable asset.
Awareness the importance access for law enforcement officials of a country
against the evidence was overseas, causing the increasing of the willingness of
countries in the world to cooperate with other countries in the form of co-operation
for Mutual Legal Assistance on Criminal Matters67 ,On the basis of the agreements
that already exist, in 1990 the United Nations issued the UN Model Treaty on Mutual
Legal Assistance is intended to be used as guidance for countries to negotiate bilateral
or multilateral agreements compiled.
The Indonesian government has had the Act on Mutual Assistance in Criminal
Matters (Act No. 1 of 2006) and has had a number of cooperation agreements Mutual
Legal Assistance in the form of bilateral agreements or multilateral agreements. Other
bilateral agreements between the Government of Australia, China, Korea, and Hong
Kong, while multilateral agreements made with countries that are members of the
ASEAN countries namely, Brunei Darussalam, Cambodia, Laos, Malaysia, the
67 Ilias Bantekas & Susan Nash, International Criminal Law, Cavendish Publishing Limited, Oregon, 2003, p 231.
48
Philippines, Singapore and Vietnam.68 In addition to a multilateral agreement with
ASEAN countries (ASEAN mutal Legal Assistance Treaty), as a state party to the
UNCAC (United Nations Convention Against Corruption)69and UNTOC (United
Nations Convention Against Transnational Organised Crime) 70. The treaty has
provided the basis for the participating countries to send requests for mutual legal
assistance to other participating countries. Therefore, bilateral agreements are needed
when the country is not a state party to the UNCAC, AMLAT, or other international
agreements as described above.
In terms of numbers, it looks bilateral cooperation agreement which is owned
by the Government of Indonesia is very little. However, as stipulated in Article 5 of
Law No. 1 of 2006, mutual legal assistance agreements can be based either on an
agreement as well as the good relations the two countries based on the principle of
reciprocity (reciprocity). Therefore, the existence of bilateral agreements is not the
only requirement to enter into an agreement for mutual legal assistance. Thus, the
number of bilateral agreements which are owned by the Government of Indonesia can
not be used as an indicator of success of cooperation of mutual legal assistance in
criminal matters.
The results of the study in the field shows that mutual legal assistance is a
priority of government Indonesia today is a relief to find evidence and assets of crime,
especially in the field of money laundering and corruption. Realizing money
laundering is closely related to the crime of corruption. Therefore, data obtained in
this study more about the data for mutual legal assistance agreements for law
enforcement in the field of corruption and money laundering.
In general, in pleading for help to the Republic of the steps that must be done is
the Government of Indonesia through the Ministry of Justice and Human Rights Party,
which has a central authority (central authority), filed a request for aid to a foreign
68 MLA ASEAN Treaty was signed on 29 November 2004 and ratified by Law No. 15 of 2008 on Ratification of the Treaty on Mutual Legal Assistance in Criminal Matters. 69 UNCAC 2003 has been ratified and approved by the Government of Indonesia through Law No. 7 of 2006 70 UNTOC known as the Palermo Convention was ratified and approved by the Government of Indonesia through Law No. 5 of 2009.
49
country, directly or through diplomatic channels by request from the Chief of Police or
the Attorney General or the Chairman of the Corruption Eradication Commission
(Vide Article 9 of Law No. 1 of 2006 on Mutual Legal Assistance in Criminal
Matters). Conversely requests for assistance to the Government of Indonesia from
other countries can be submitted directly or through diplomatic channels. The
application for the aids shall contain the intent to requests for assistance, intansi or
name Investigator, Public Prosecutor, Judge, a description of the criminal offense
covering the acts or circumstances alleged, Court Decisions, details on the procedure
or special conditions that you want, either on confidentiality or a time limit. In the
case of requests for assistance have met the requirements, then the Chief of Police or
the Attorney General can follow up. If the requests were denied, the request for
assistance was informed by the basic reasons for refusal to the requesting country.
The stages in the procedure assistance provided at the request of other
countries as well as the application submitted can be broken down as follows:
a. incoming
1. Central authority (CA) to analyze / assestment whether the request
meets the requirements listed in Domestic Regulations;
a. If yes, CA perform an analysis to determine the best Competent
Authorities have authority, taking into account:
1. Criminal actions contained in the request MLA
2. Contacts already done sebelu mnya by the requesting
State with Indonesian law enforcement authorities
3. Demand requested by the requesting state;
b. If not, CA should contact the requesting State to ask for clarification
2. Central Authority (CA) must contact the competent Authorities the associated
request.
b. outgoing
1. Competent Authorities to draft a letter of request in accordance with
the requirements of the Requested State or template that has been
determined by the Central Authority
50
2. Template request made by the Central Authority (CA) as much as
possible adapted to the general requirement in international standards
MLA request
3. Competent Authorities to send the request to the CA to be followed
4. Central Authority (CA) to analyze / assestment whether the request
meets the requirements listed in Domestic Regulations, for example:
whether the MLA request was based on the investigation process (Act
No.1 of 2006)
5. CA help Competent Authorities to adjust the draft request with the
requirements demanded by the state requested
6. CA ensure contact Person who can be contacted in the MLA request
7. CA to send the request to the Requested State
8. CA together with the Competent Authorities establish effective
communication with the State requested to ensure follow-up of the
request.
4.2 The Effectiveness of Mutual Legal Assistance Treaty in Criminal Matters
with National Interest
State of the country are at risk due to the criminal acts of transnational crimes
or transnational crime requires divulging u mechanism whereby the mechanism is
able to provide a legal umbrella to bridge to the crime of transnational that is by a
treaty that is able to bind the countries concerned with the aim of providing assistance
and tackling things that are backwardly transnational crime.
The genesis of Law No. 1 Year 2006 on Mutual Legal Assistance in Criminal
Matters has provided a mechanism and a new order in the realm of international law.
In its application, this mechanism is useful in setting technicians and procedures are
able to provide referrals in its task of helping the briefing in perbantuan law given to
obtaining evidence from the results peyidikan and investigation, confiscation of
assets, obtain the necessary information in court files, and so on.
With the implementation of this legal mechanism, it was helping a lot of cases
of international disputes, especially for countries that need legal assistance. This
mechanism proved to be very effective at bridging cases transnational criminal law or
51
across countries is through agreements Mutual Legal Assistance in Criminal Matters
which have been agreed by the parties. However, in its application, although very
effective at helping the parties to legal proceedings, legal mechanisms have
encountered some obstacles which could hinder the application of this mechanism
itself.
The obstacles encountered in some cases such transnational crimes is because
of differences in legal systems, and poor coordination between the authorities and the
Central Authority (CA) in handling a case.
4.2.1 Provisions applicable law
Although Indonesia has made the integration of Mutual Legal Assistance
(MLA) into national regulation through Law No. 1 of 2006 on Mutual Legal
Assistance in Criminal Matters, having signed and ratified the United Nations
Convention Againts Corruptions (UNCAC), and was made an agreement on Mutual
Legal Assistance in some countries such as China, the United States and Korea as
well as being a signatory to the treaty on Mutual Legal Assistance in Criminal
Matters were made by the ASEAN countries, but the agreement of MLA itself, seems
to suggest Indonesia in less progressive, as the Law on MLA will not function
properly if it is not followed by concrete action from the government to use this
instrument, because a condition of the Legal assistance treaty reciprocity (Mutual
Legal Assistance / MLA) to be undertaken, are defined in a treaty, even if there is no
agreement can indeed be done on the basis of a good relationship is based on the
principle of reciprocity. Besides, the MLA law which is being implemented in
Indonesia, doesnt supported by the PP or by the Government Regulations so it can be
really difficult to applicated it in National Law.
The necessity made of Mutual Legal Assistance Treaty(MLAT), according to
the author, is very reasonable, because the treaty will bind the parties make an
agreement, it is appropriate principles of international law set out in the Vienna
Convention on Treaty international (UN Convention on the Law of the treaty) in
1969, and can be answered based on the practice of international relations, based on
the general principles applicable international agreements, "pacta sunt servanda"
(Article 26) and the provision that a state may not refuse implementation of an
agreement with reason is contrary to national legal systems (Article 27) .
52
Besides, Indonesia is often slow in ratifying the treaty MLA who has been
signed, Compare with the United States yangmemiliki agreement MLA with about 50
countries, trillionth ti with the Philippines and Thailand, where s hile the People's
Republic of China have 39 Testament MLA with other countries.
4.2.2 The Weaknesses of Law Enforcement
Likewise, in addition to the Indonesian Government is less progressive in making
agreements Mutual Legal Assistance (Mutual Legal Assistance / MLA) also seemingly
unpreparedness of the justice system in this country, and also because of the limited
understanding of the legal apparatus Indoneisa about the mode of economic crimes are
more complicated and complex because have involved financial institutions, banking,
capital markets, and other instruments that cut across state intervention coupled with
enormous power and they often occur against law enforcement officers.
So often the judge's decision to punish the perpetrators of corruption or found not
guilty and the verdict too light so that it can happen due to a lack of ability in evidence
and appreciation of rasa` justice in society that do not meet the demands for social justice,
which is sociologically unacceptable.
Likewise, Transaction Reports and Analysis Center (PPATK) as a Government
Institutions that can help in tracing the corruption assets under the Act on Money
Laundering, has only limited authority on the processing and analysis of the information
it receives. Center for Financial Transaction Reporting and Analysis (PPATK) does not
have the authority to terminate the transfer or the transfer of assets suspected proceeds of
crime. This is different to (AMLO) Thailand’s Money Laundering Regulation that has the
authority to transfer or the termination of the property transfer, and even perform asset
management of assets that powered by.
Due Reporting and Financial Transaction Analysis (PPATK) does not have the
authority does not have the authority to terminate the transfer or the transfer of assets
suspected proceeds of crime, the proceeds of crimes including the crime of Corruption
will be difficult to prevent the transfer of the assets of corruption and its perpetrators the
Overseas Foreign especially targeted by the perpetrator of the countries that do not have a
relationship aGREEMENTS Mutual Legal assistance (Mutual Legal assistance / MLA),
53
or diplomatic relations and relations based on an extradition treaty with the state
Indonesia.
Based on the argument above, the role Reporting and Financial Transaction Analysis
(PPATK) is not given the authority to stop the transfer or the transfer of wealth from the
proceeds of corruption is an obstacle in preventing crime Corruption and Mutual Legal
Assistance (Mutual Legal Assistance / MLA). This argument is justified because the
spirit of a crime is money or money is the backbone of a crime "live blood of crime", as
expressed Pradjoto that should have been the first to do is confine its assets and not chase
people. This is because, by confining its assets, the fugitives are believed not to be able to
move anywhere and be caught in its own does not have the money (Money follow the
man).
Unpreparedness and lack of understanding the justice system in this country can be
seen as expressed by Yunus Husien:
“Coordination between law enforcement agencies combating corruption is still less
than the maximum and less harmonious. Evidence of coordination is minimal it can be
seen from the case files back and forth from the investigator to the public prosecutor as in
the case of Adrian Herling Waworuntu (L / C fictitious PT. Gramarindo in Bank BNI
Kebayoran Baru) some time ago where the case file in question till seven times back and
forth before finally declared complete (P-21). We also often see the phenomenon of
"fight the case" more impressed described the "arrogance" rather than a desire to resolve
the case as well as possible. In fact, what is needed is cooperation and synergy combating
corruption because it is impossible to eradicate corruption is rampant in the absence of
cooperation and synergy it. Even the co-operation and synergies should be realized also
with non-law enforcement institutions such as the concerned government agencies,
regulators, financial institutions, financial services providers, the media and the public at
large. The synergy is in my view actually said as integrated criminal justice system which
is indispensable in combating corruption .”
- Based on the conclusions of the National Level Monitoring Coordination Meeting in
Bali in December 2002 that outlines there are some serious obstacles in enforcing the law
against the crime of corruption in Indoneisa:
54
a. Structural barriers, these barriers are sourced from the practices of state
administration and government that makes the handling of corruption does not
run properly. Included in this group include, among others: the sectoral and
institutional egotism that leads to the filing of funds as much as possible for
the sector and institution without regard to overall national needs and designed
to cover up the irregularities contained in the relevant sectors and agencies;
yet effective functioning of the monitoring function; lack of coordination
between supervisory authorities and law enforcement officials; and weak
internal control system which has a positive correlation with many
irregularities and inefficiency in the management of state assets and the low
quality of public services.
b. Cultural barriers, these barriers sourced from negative habits developed in the
community. Included in this group include, among others: the persistence of
the "reluctant attitude" and tolerant among government officials that could
hamper the handling of corruption; less open institution head so often
impressed tolerant and protecting the perpetrators of corruption, interference
of the executive, legislative and judicial branches of government in the
handling of corruption, the lack of commitment to deal with corruption firmly
and thoroughly, as well as the permissive attitude (indifference) most of the
efforts to combat corruption.
4.2.3 Instrumental Barriers
Instrumental barriers, barrier that comes from the lack of a supporting instrument
in the form of legislation which makes the handling of corruption does not run
properly. Included in this group include, among others: there are many laws that
overlap giving rise to corruptive behavior in the form of bubbles fund the government
agency; yet their "single identification number" or a valid identification for all public
purposes (driver's license, tax, bank, etc.) that can reduce opportunities for abuse by
any member of the public; weak law enforcement handling of corruption; the absence
of strict sanctions for supervisory authorities and law suppressor apparatus; the
difficulty of proof against corruption, and the slow process of handling corruption
until sentencing.
Based on the study and inventory of legislation which Chance KKN the period
1999 to 2003 by the Ministry of PAN concluded that legislation containing slits CCN
55
is the formulation of the articles are ambivalent and multi-interpretation as well as the
absence of strict sanctions (multiple interpretations ) against offenders legislation.
4.2.4 Management Barriers
Constraints Management, the barriers that come from neglect or failure to
apply the principles of good management (commitment be implemented in a fair,
transparent and accountable), which makes the handling of corruption does not run
properly. Included in this group include, among others: lack of management
commitment (the Government) to follow up the results of supervision; the lack of
good coordination among supervisory authorities and between supervisory authorities
and law enforcement officials; the lack of support of information technology in
governance; no independent monitoring organization; lack of professional largely
control apparatus; lack of support systems and monitoring procedures in the handling
of corruption, as well as the inadequacy of the system including the system of
personnel recruitment, low "salary formal" civil servants, performance appraisal and
reward and punishment.
4.2.5 External Barriers
In addition to the above also an obstacle to the return of assets Foreign
Corrupt, such as for example as disclosed by Prodjoto to figure out how much money
was taken to Singapore and where the money is saved, even if ultimately the money
can be tracked, the money can only be retaken if Bank of Singapore will open and
willing to freeze the accounts of the perpetrators, which became a problem, because
According to the laws of Singapore, the central bank may not open an account with
the authority to freeze the accounts without going through the decision peng court
local and thus it is very difficult to return the assets are brought into Singapore.
To be able to withdraw funds taken by the corrupt or other economic crimes
perpetrators, Indonesia should take a very long series of steps. First, catch the person.
Then, prosecute those people in Indonesia. Once there was a court decision which is
final and permanent means there should be a decision of the Supreme Court and it
could take 6-7 years, a new court decision that had to be eksekutorial was taken to
Singapore and then do a lawsuit (due process of law) to k epentingan confinement
assets.
Singapore court can also make decisions that are uit bij vorbaar voraad, or
preliminary decision to confiscate all assets or property in advance, although there is
no process of appeal or cassation. However, the problem, Singapore unwilling or
56
unable to do this. So based on the above arguments, the legal system in addition to
Indonesia and Singapore are much different. Also their own legal process and
separate the long and complex.
Likewise in making Assistance Agreement Indonesia (Mutual Legal
Assistance / MLA) between Indonesia and other countries such as Singapore, because
in this country indicated the amount of assets of the results of the follow-Corruption
were, Indonesia inconsistencies in their dealings in the Agreement Mutual Legal
Assistance (Mutual Legal Assistant / MLA), dated 29 November 2004 with the goal
of return on assets of crimes including corruption and BLBI well as other crimes, the
Indonesian side approved the implementation downs (non-rectroactive), while the
return of the perpetrator of an extradition treaty dated 23 April 2007, the Indonesian
side sampa retroactively approve the application of i 15 (fifteen) years.
Meanwhile, if the Treaty of Mutual Legal Assistance, Indonesia can fight for
the principle of retroactivity is extremely desirable because in principle assets of
criminal proceeds of corruption are brought out of the country "safe haven countries"
made before the entry into force Peranj ian assistance Mutual Legal.
In undertaking the International Agreements with other countries The
principle of retroactivity is not prohibited because if we look at the provisions in
international law there is a possibility to make exceptions or to the contrary, it means
giving a chance to enact retroactive principle remains open. It can be seen from the
provisions of Article 28 of the Vienna Convention 1969 and Article 28 of the 1986
Vienna Convention exactly the same formulation. Then, Article 64 and Article 53 of
the Convention also gives the possibility of coming into effect of the retroactive
principle. Other provisions can be seen in Article 103 of the Charter and Article 15
paragraph (2) of the ICCPR which is an exception to Article 15 paragraph (1).
4.3 Alternatives in Combating Mutual Legal Assistance in Criminal Matters
Barriers Responding to the constraints noted above, there are alternatives that are supposed to
help reduce the things that can hinder MLA mechanisms, namely the existence of training
for each of the parties may be authorized in the handling and settlement of criminal cases
of transnational or cross-country. Training is given in the form of knowledge and
technical training related to the implementation of the procedure Mutual Legal Assistance
57
in Criminal Matters. This training is useful to reduce lack of coordinatian in assisting
countries in need of legal assistance, that officials menagani yag authorities in cases of
transnational professionals, and the maximum in carrying responsibilities.
In the legal system, it is also necessary enactment of Civil forfeiture lawsuit. In
different parts of the world for countries that embrace Anglo-Saxon legal system /
Common Law, they no longer provide separate views between the criminal justice system
with civil asset in the pursuit of proceeds of crime resulting from a crime. Their legal
system allows to know their deprivation of assets known as the Civil Forfeiture or
seizure.
Civil forfeiture is a series of government actions to confiscate or seize proceeds of
crime of corruption are brought out of the country, in the absence of a criminal court
judgment against the perpetrator. Because of the principle of civil forfeiture is the
confiscation and return of an asset through a lawsuit in rem or a lawsuit against the asset,
in civil forfeiture verification system used in the trials using inverted authentication
system where governments have enough initial evidence that the asset is taken to be the
result of, relating to or used for the crime. For example, the government is quite calculate
how much revenue from the corrupt and compared with its assets, if the assets exceed the
amount of the corrupt, then the task of the koruptorlah to prove that such assets he can
through legitimate paths.
From the description above Civil forfeiture is a very useful alternative to foreclose
and take the assets of criminals, khusnya that switch out of the country. Usefulness of
civil asset forfeiture in the process of return of the corrupt are:
First, civil forfeiture is not related to a criminal offense so that foreclosure can be
quickly requested to the court, rather than through Criminal forfeiture is the confiscation
process will be conducted in the presence of a suspect guilty verdict.
Second, civil forfeitur, use the civil standard of proof to be met relatively lighter than
the standard criminal and civil forfeiture also adopted a system of proof.
Third, civil forfeiture lawsuit against an asset (in rem) that allegedly came from, worn
or have a relationship with a criminal offense, the perpetrator is not a problem condition
in question, such as blurring, loss, death or elimination sikoruptor of criminal decisions.
Fourth, civil forfeiture is very useful when criminal prosecution is the hindrance or
not allowed to do.
The process of civil forfeiture is only known in countries adherents of the system of
Anglo-Saxon / Common Law whereas in countries that embrace the European system of
58
Continental / Civil Law as well as Indonesia matter Civil forfeiture is not yet known,
although there is a civil action as stipulated in article 38 of Act No. 20 of 2001 which was
very different to the civil forfeiture.
However, the implementation of the instrument of civil forfeiture is not easy given
the principle is very different from the principle of civil law Indonesia, but according
Bismar Nasution, the successful use of civil forfeiture in developed countries may be
diadikan discourse for Indonesia, because it will give you an advantage in the judicial
process and to pursue the corrupt assets. As seen so far, prosecutors often have difficulty
in proving corruption cases because of the high standard of proof used in criminal cases.
That suit almost simultaneously with civil forfeiture has been done by Indonesia to the
case of money Haji Achmad Tahir, former Assistant General Director of Pertamina,
together with the second wife of the deceased, Kartika Ratna Tahir, amounting to 35
million US dollars in Bank Sumitomo Singapore on July 23, 1976 After 16-year struggle,
on December 3, 1992, Pertamina finally getting the inheritance Haji Achmad Tahir. In a
thick 214 page ruling, the Singapore High Court judge Lai Kew Chai decided that
Pertamina is entitled to cash deposits totaling around 78 million dollars (growing from 35
million in 1976).
59
CHAPTER 5
CLOSING
5.1 Conclusion
Observing the problems and discussions described above, it can be concluded as follows:
1. The principles contained in Law No. 1 of 2006 on Mutual Assistance in Criminal Matters seen that their primacy in the use of principles between the principles of criminal law and the principles of international law. Especially the principle of reciprocity in terms of helping the passage of a process requests for assistance, due to the good relationship between the two countries requesting and requested states had been committed expected completion quickly resolved. To resolve any issues, especially in the application of the procedural mutual aid, which is best achieved is by making agreements (treaty) bilaterally and multilaterally among interested parties on issues of crime, which is generally referred to Mutual Legal Assistance in Criminal Matters.
2. This kind of agreement is the foundation for the agreement. In addition to the cooperation of reciprocity between countries, in their own country related agencies also must coordinate and cooperate according to the laws of mutual legal assistance in criminal matters, cooperation and coordination in the country is done by a Central Authority as a forum to ask for help to foreign countries or vice versa. The cooperation of mutual legal assistance on criminal matters between countries are still experiencing difficulties in terms of return on assets of corruption because of different legal systems. Weaknesses or deficiencies in the provision of Law No. 1 of 2006, must be improved or made more clear operational guidelines so that the job description of each agency, including the authority of the Central Authority in the implementation of the MLA can more clearly and effectively.
5.2 Suggestions
In order to achieve expectations for the realization of international cooperation in the mechanisms of mutual assistance the better, the recommendations can be submitted are:
1. As an effort in perfecting the Law No. 1 of 2006 on Mutual Legal Assistance in Criminal Matters in the future, it is expected in the implementation of the
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tasks of the Central Authority cooperation is needed in the country which includes the Department of Foreign Affairs (Diplopatic Channel), the Police, the Attorney , KPK (Corruption Eradication commission), INTRAC (Reporting and Financial Transaction Analysis), Ministry of Justice (Central Authority) in order to determine the assets that can be seized, searched, blocked institutions authorized in foreign countries as well as expected legislation on mutual legal assistance in criminal matters that will come to accommodate all kinds of aspects of crime.
2. The implementation process for requesting and providing assistance stipulated in Law No. 1 of 2006 on Mutual Assistance in Criminal Matters visible presence of a procedure that is slow and the cost is not small, it is thus expected (refinement) legislation on mutual assistance in criminal matters that will come more effective, efficient, professional, and systematic.
3. The need for a special forum which is done regularly between institutions of the CA in the State party.
4. Building the media information about the formal procedures of filing and acceptance of mutual assistance requests.
5. Making socialization of international cooperation in the field of Mutual Legal Assistance.
6. Increasing the technical training programs in drafting and communication throughout CA, especially with regard to the manufacture of MLA.
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BIBLIOGRAPHY
A. Book
Anom Suryo Putro, Script Code of Ethics and Rules of the House of Representatives Talking Ingredients For Proper Management Project UNDP in cooperation with the General Secretariat of the House of Representatives, 2007.
Frans H. Winarta, Asset Recovery Through the StAR Initiative, KHN Newsletter, vol.7 No. 3.2007.
Ilias Bantekas & Susan Mas, International Criminal Law, Covendisk Publishing Limited, Oregon, in 2003.
Joenarto, Democracy and Governance System State, Nina Literacy, Jakarta, 1983. Nobuala, Halawa, Papers Class on "Principles of Mutual Assistance
Based in Criminal Matters Act No. 1 of 2006, the Graduate Program Padjadjaran University, Bandung, 2007.
Mochtar Kusumaatmadja, Concept of Law in Development, Alumni, Bandung, 2006. ..........................., Law, Society, and the National Law Development, Binacipta, Bandung, 1976.
Romli Atmasasmita, Capita Selecta Criminal Law and Terminology, Mandar Maju, Bandung, 1995.
Romli Atmasasmita, criminal law governing the limits of the entry into force of criminal law beyond the territorial limits of a country, Expert International Criminal Law, Graduate School of ubuntu, 2007.
Rosmi Hasibuan, An Overview On International Treaties, International Law Department of the Faculty of Law, University of North Sumatra, in 2002.
Soerjono Soekanto, An Introduction to Sociology, Rajawali Press, Jakarta, 1996.
Soerjono Soekanto and Sri Mamudji, Normative Legal Research, A Brief Tinajuan, Prints K e II, Rajawali, Jakarta, in 1998.
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Sondra P. Siagian, We Improve Work Productivity, Rineka Copyright, 2002. Yudha Bhakti, International Law Anthology, Alumni, Bandung, 2003.
Yudha Bhakti, Criminal Jurisdiction in International Law, Law Magiuster Program, Graduate Padjadjaran University, Bandung, 2006.
Yudhi Pratikno. Analysis and Evaluation of Law No. 1 of 2006 on Mutual Relations in Criminal Matters. Graduate Program, University of Padjadjaran, Bandung, 2007.
Yunus Husein. International Cooperation in Freezing, Seizure and Asset Acquisition of Corruption. Papers workshop on International Cooperation in the Fight against Corruption. Organizers BPHN-Diponegoro University in Semarang, Semarang, May 22, 2008.
B. Legislation
Law No. 1 of 2006 on Mutual Assistance in Criminal Matters.
Act No. 1 of 1999 on Ratification of the Agreement Between the
Republic of Indonesia and Australia Concerning Mutual Assistance in
Criminal Matters.
Act No. 1 of 2001 on Ratification of the Agreement Between the Republic of Indonesia and Honglong Regarding Mutual Assistance in Criminal Matters.
Law No. 8 of 2006 on Ratification of the Agreement Between the Republic of Indonesia and the People's Republic of China Concerning Mutual Assistance in Criminal Matters.
Law No. 15 of 2008 on Ratification of the Agreement Between the Republic of Indonesia and the ASEAN Member Countries Regarding Mutual Assistance in Criminal Matters (Treaty On Mutual Legal Assistance in Criminal Matters).
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Law No. 25 of 2003 on Money Laundering.
Law No. 7 of 2006 on UNCAC.
Bill PTPK On Combating Corruption. Fitness Inforfmasi Ministry of Justice and Human Rights Affairs.
1969 Vienna Convention on the Law of the Agreement.
MLA ASEAN Treaty was signed on 29 November 2004 and ratified by Law Number 15 Year 2008 regarding Affirmation Treaty on Mutual Assistance in Criminal Matters.
UNCAC 2003 has been ratified and approved by the Government of the Republic of Indonesia through Law No. 7 of 2006.
UNTOC was known as the Palermo Convention, was ratified and approved by the Government of the Republic of Indonesia through Law No. 5 of 2009.
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