STaR: Standard Mechanism of Stolen Asset Recovery in the Framework of Eradication Corruption

Abstract :  By Maskun[1]; Birkah Latif[2]

Corruption has become a serious threat to all countries over the world and has been stated as “acute disease”.  By realizing of that fact, the United Nations, then, makes United Nations Convention against Corruption (UNCAC) as an umbrella law to deal with corruption issues. One of the most important things related to the convention is the idea of stolen asset recovery (StAR). It means that the stolen asset should be recovered to “the corrupted states”. Therefore, it is pivotal to design standard mechanism to recover the asset and know such factors that influence implementation of StAR in state practices, particular inIndonesia.

 1. Preface

A. Background

Corruption has become the enemy of mankind and even had transformed into a fearful “endemic disease”. The epidemic disease means that corruption almost takes place in all over the world without known panacea to deal with. There almost no empty space in this world where someone did not act the corruption, especially in the third world countries (developing and least developing countries). Therefore, with the “epidemic” characteristic which adheres to it, then the corruption is not only becoming the national problem in a certain country, but also has becoming an international problem that must be resolved, considering the wide scope, the settlement of this problem is not only use the instruments of national law, but also the international law instruments.

The utilized of the national law instruments that had been taken in recent century in controlling and striking against the corruption in every country, do not bring much change to muffle this criminal act of corruption. InIndonesiafor example, until this day it had legislated three (3) acts on Eradication against Corruption Criminal Act, which is the Act No.3 year 1971 that had been substituted by the Act No.31 Year 1999, then afterwards being substituted again by The Act No. 20 Year 2001. This substitution on the eradication of corruption had shown the certain aim and effort of the Indonesian Government to fight against corruption. The substitution that had been conducted certainty is carried out in order to make it analogously with the expansion of corruption method itself. However, those efforts not effective enough in decrease the quantity of corruption in Indonesia. Precisely, if we talk honestly, Indonesia until today attained a very disadvantage position concerning the law enforcement of the corruption eradication.

The restrictiveness of national law instruments as mentioned above, also occur in almost country in the world. Therefore, by understanding those objectives situation, The United Nations (UN) as the legitimate institution and as the umbrella of international institution concept the possibility to create a convention against corruption as soon as possible in the world and built a dialogue community in international cooperation form to dismiss the corruption complication. To bring  that concept into reality and as the seriousness of the United Nations, then on 9 December 2003 that took place in Merida, Mexico had been signed The United Nations Convention Against Corruption (UNCAC) and signed by 133 countries.

Millions of people’s hopes rely over this formation of UNCAC. They believe that UNCAC, as the first international instrument in corruption eradication field, will be able to eradicate corruption. The corruption matter shall be finished in both national and international mechanism. The common aims of this convention are: (1) increasing/strengthening international cooperation (asset recovery); (2) increasing the integrity and accountability along with public management in managing the state’s properties.[3]

Questioning and analyzing the common aim of UNCAC, intrinsically put the countries position to response as soon as possible to the presence of this convention. Corruption which is day by day had turned “insane” needs a collective problem solving, especially in the asset recovery context which is reside outside of the country, this asset recovery at the beginning was slighted and in the law enforcement sector like in Indonesia, it does not have an explicit law basis. In Indonesian law, does not explicitly recognized the existence of asset recovery term both in the Act No.17/2003 on State Finance and Act No. 1/2004 on State Treasury as well as in Act No. 31/1999 which was modified by Law No. 20/2001 on the Eradication Corruption. In fact, it is also not regulated in Law No. 15/2002 which amended by Act No. 25/2003 on Money Laundering.[4]

Indonesiaas part of the countries that declared war on corruption, has shown its commitment by ratifying the UNCAC and legislating it in the Act Number 7/2006 concerning Ratification of UNCAC 2003. The commitment expressed in the form of ratification is a “fixed price” that must be done by the Indonesian government, especially in an effort to restore the asset (asset recovery) nations that are stored by the corruptors abroad.

In practice, the problem of assets recovery is not as simple as it is written (in the law books), that many aspects must be considered in supporting the implementation of asset recovery. Recognizing that fact, then through a combination with United Nations UNODC and the World Bank began a program (initiative) called the Stolen Asset Recovery (StAR) initiatives that have been discussed jointly by the World Bank and International Monetary Fund (IMF) at a meeting held on April 14, 2007. Furthermore, UNODC and the World Bank in cooperation with developed countries and developing countries and UN agencies such as the G-8, IMF, Organization for Economic Cooperation and Development (OECD) initiative to ensure that the results are correct – is a global effort (international).

b. Problems

            Made reference to the background above, then the constraint of this research, are:

1. How the mechanism of stolen asset recovery (StAR) in national and international law is ?
2. What factors influence the implementation of stolen asset recovery (StAR) mechanism in countries practices especiallyIndonesia ?

c. The aim of Research

            The aims of this research are:

1. To find out the mechanism of Stolen Asset Recovery (StAR) in national and international law context.
2. To find out some factors that influence the implementation of asset recovery mechanism in countries practices especiallyIndonesia.

II. Research Significance

            To comprehend the urgent and the significant meaning of a mechanism standard in asset recovery (StAR) particularly on saved asset outside the relevance country, then the benefit that can be obtain from this research are:

1. The finding of a mechanism standard of asset recovery (StAR) in national and international context.
2. Harmonization attainment and synchronization of law regulations starts from the Act until the lower act/regulation.

 

III. Methodology

This research will apply methodology, as following:

1. Research Sites

            This research with some consideration will be conducted in Makassar, as the capitalProvince ofSouth Sulawesi, in which it has relevance institutional sets of equipment with this research attention, like the Attorney, Police institution and the other relevance institutions.

2. Sample and Population

            This research’s populations are Attorney, Police Institution and the other relevance institution which is sited in Makassar. Afterwards from those chosen population will be selected in a non-random sampling with purposive sampling method that is choosing in such a way the sample of subjects until those samples are really reflected the characteristic from the population that will becoming the research matter.

3. Data Collection Technique

                The data will be collected by applying techniques such as document study and interview. The Document studying or library matter which are the investigation of the formal document and informal document as the primer law matter and secondary to acquire the secondary data which is relevance and will be use as reference matter in analyzing the present problem. The interviewing will be done in the direct asking question form with the respondent and using the relevance primer data.

4. Data Analysis

Data analysis techniques used in this research is qualitative. Data collected from primary and secondary data, then will be processed and analyzed in the form of verbal words, intangible number.[5]

IV. Findings

A.  The Asset Recovery Mechanism (StAR) in National and International Law Context

In the launching of the StAR, the Secretary-General of the United Nations (UN) stated that “theft of public assets from developing countries is a grave and concern”. He further stated that “because of theft of assets is usually a transnational crime, recovery of stolen assets requires multilateral cooperation”. He asserted also that the StAR Initiative will encourage increased cooperation between developed and developing countries and between the private sector and public sector to ensure the return of stolen assets. UN Secretary-General statement above, gives hope particularly for developing countries in order to restore the damaged state assets by “corrupt”. However, also realize that it is not a simple thing to handle. Therefore, we need a mechanism to return the assets of these countries in particular assets that have been kept outside the country.

Asset recovery mechanism is required to formulate technically. It is considering one of the main objectives set by the UNCAC is the assets recovery derived from criminal acts of corruption. Article 1 letter b UNCAC states that:

”the purposes of this convention are: to promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including asset recovery”.

UNCAC further assumes that the corruption cases occurred in most developing countries has involved a large number of assets as an important part of the country’s resources, and could threaten political stability and sustainable development of the country destroyed. To formulate a comprehensive approach in the recovery of assets of corruption at its core is needed to prevent and combat corruption effectively. Of course, the availability of national legal instruments in collaboration with international law (UNCAC) plays an important role in assisting and supporting the return of the relevant assets of corruption.

Recovered corruption assets can be dichotomized on the assets stored in the domestic country and abroad. This dichotomization is pivotal to track inmates in charge of assets in domestic and abroad. It also will birth different treatment of recovery the assets of corruption. However, the assets recovery in foreign corruption can only be done after a court decision which has permanent legal power (inkracht) in countries where prisoners have been declared as a crime of corruption, and then followed up with a civil lawsuit to investigate the existence of assets, especially assets that are stored outside country punished.

Therefore, technically, can be formulated that steps should be taken to restore the assets of corruption, namely:

1.  Initial step that must be formulated in a regulated return on state assets and / or prove that the alleged criminal acts committed by the “defendant” is a criminal act of corruption.

This should be in the form of a court decision that has permanent legal force (inkracht). This can be seen on the results of interviews conducted with Mr. Mustari, SH (Makassar District Court Judge), on August 3, 2009, which states that the mechanism of assets recovery (financial loss state) proceeds of crime of corruption through the criminal legal instruments (the national instrument) refers to Act No. 31 of 1999 on Eradication of Corruption that has been modified by Act No. 20 Year 2001 on Amendment of Act Number 31 Year 1999 on Eradication of Corruption, done in a way, as follows:

1. The court decision states that the evidence was sentenced assets, brought into the country. This can be seen in the formulation of Article 18 paragraph (1) letter (a) that states that: “the seizure of goods moving is not tangible or intangible or immovable goods are used for or derived from criminal acts of corruption, including property companies, where acts of corruption of the convict, as well as goods which replaced these items.
2. Payment of the amount of money replaced as much as the property derived from criminal acts of corruption (Article 18 paragraph (1) letter b).
3.  If the convict could not afford to pay cash instead, then in time of at least 1 (one) month after a court decision which has obtained permanent legal force, their possessions may be seized by the prosecutor and auctioned to cover the replacement money (Article 18 paragraph (2)).
4. In the case of prisoners did not have enough assets to pay the replacement money, then shall be punished with imprisonment not exceeding the maximum length of the principle of criminal threats in accordance with the provisions of the Act to eradicate corruption and duration of such criminal had determined in a court decision (Article 18 paragraph (3))

In the case that there is a the state loss significantly but not enough evidence to prove the elements of corruption, then the instrument of a civil lawsuit can be pursued in order to return the assets of corruption. Mr. Imran Yusuf, SH, (Chief of Staff of State Attorney Prosecution inMakassar) in the interview conducted on July 27, 2009 stated that the rate of return on assets (financial losses the state) can be done through civil suits, which are regulated, the Civil Code (HIR), the following mechanisms are:

1. If the investigator who handled the case of actual losses to the state but not enough evidence to prove the elements of corruption, researchers conducted a stop. In this case the investigator handed the case files of investigations into the State Attorney Prosecutor (JPN), or the affected agencies, to conduct a civil lawsuit against the suspect file that has harmed the state finances (Article 32 paragraph (1) the law against corruption).
2.  The judge may freely pass free verdict in the case of corruption, although there are significant financial losses the state, because the elements of corruption are not met. In this case, the prosecutor submitted to JP verdict or agencies affected, to conduct a civil lawsuit against the former defendant who has harmed the state finances (Article 32 paragraph (2) the law against corruption).
3.  In the investigation of possible corruption case suspects died, while there are significant losses to the state. The investigation must be stopped and the investigator handed the case files with the results of the investigation or injured JPN institutions, to conduct a civil lawsuit against the heirs (Article 33 of the law against corruption).
4. If the defendant died during the examination in court, while there have been significant losses to the state. The probe must be stopped and the investigator handed the case files with the results of the investigation or injured JPN institutions, to conduct a civil lawsuit against the heirs (Article 34 of the law against corruption).
5. There is a possibility after a decision of justice resulting force legal permanent, known there is still properties that have not been recognized flight charged guilty (while the Court of first instance could not prove the defendant’s property was obtained not due to corruption), then State can exercise a civil suit against prisoners and / or their heirs (article 38 of the law against corruption).

 

Based on the above descriptions, the instrument of civil law to recover assets of corruption can be done if:

a)      Termination of the process of criminal investigation or prosecution by issuing a Letter of Termination of Investigation Command (SP3) or Termination Decision Prosecution (SKPP) by the prosecutor.

b)       Criminal proceedings have been completed, either a criminal verdict or an additional award acquittal.

The description of the instruments on civil and criminal law above are early mechanism that should be done in the early recovery of assets of corruption. In the case of condemned assets inIndonesia, then the application of instrument civil and criminal law will soon be used.

1. If convicted of assets has been recorded in the foreign asset recovery mechanism must refer to the UNCAC to maintain this mechanism is based on the decisions that have proven convicted of corruption.

Arrangements on return of assets in the UNCAC can be done by:

2.1 The criminal process:

1)      The initial investigation conducted by financial institutions of a country (jurisdiction) to investigate the identity of the owner (customer), to take steps to build a natural identity of the owner of the funds held in accounts of great value and to apply the extra accuracy of the accounts made or held by or on behalf of individuals who do or have been entrusted by important public officials and their family members and close partners (Article 52 of the UNCAC).

2)      Clear guidelines on the type of person or legal entity should be given extra charges precision by financial institutions in the jurisdiction, type of accounts and transactions that need to be given special attention and action to be taken in account opening, deposits and accounts of this account ( Article 52 of the UNCAC).

3)       Financial institutions to ensure that adequate records for a reasonable period accounts and transactions involving anyone (people). In this case the identity in question is the identity of the owner and / or related to the identity of the customer (Article 52 of the UNCAC).

4)       Ask for help regulatory agencies and the establishment of bank supervisors who have no physical presence and are not affiliated to a financial group, to prevent and detect corrupt transfer of assets (Article 52 of UNCAC).

5)      In the context of a takeover, the authority competent for the Court effectively seizure warrant other countries and / or confiscation of proceeds of crime of corruption that come from other countries and / or (Article 54 UNCAC).

6)       It is possible confiscation without criminal decision (which could happen if the suspect / defendant dies or flee, or for other reasons, and / or confiscation carried out for reasons to keep / maintain the property that is the result of corruption (Article 54 & 57 UNCAC).

 

2.2. The Civil process carried out by requesting proof that the plaintiff reversed just enough initial evidence to prove that the assets are taken is the result, associated with or used for evil. Furthermore, the defendant itself must prove whether it is true indication of corruption or not.[6] For example, the governments calculate how much income from corrupt and compare it to protect their assets. If the assets exceed the amount of the income of corrupt then it become the obligation of corrupt to prove that the assets obtained through legitimate channels.[7]

 

The process of asset recovery through the civil route is also considered very useful for general reasons such as death, the absence of the defendant or defendants who can hinder criminal process can be ruled out. Technical can also be pursued by:

1.  Allowing another State party in court to committed civil action (domestic national law) to establish the rights or property of assets derived from criminal acts of corruption.
2. Allowing the Court of Justice (national courts) to instruct those who have committed crimes of corruption to pay compensation or damages sentences claim that the injured due to criminal acts of corruption.
3. Allowing tribunals and agencies authority to decide seizure, to accept the assertion of the State as the legitimate owner of wealth obtained from corruption committed by the corrupt. As example can be seen in the case of former President Marcos that supposedly “theft of property of the State during the President of the Philippines”, as the Swiss Federal Supreme Court ordered the transfer of banking in a Swiss Bank that stores deposits of Marcos, in Geneva, Zurich, information documents and Government Friborg Philippines, who accompanied the Government allows the Philippines to present claims before the courts in the Philippines with the main demand to destroy Marcos  deposits in banks.[8]

 

Corruption asset recovery mechanism, as mentioned should technically be returned to their countries where fraud embezzlement of corruption done. Therefore, the United Convention against corruption has endowed itself with preparing the forms of cooperation that can be done to support and accomplish the things that mattered.

The existence of international cooperation as referred to in Article 43 – 50 UNCAC aims to enable the countries to be a fugitive embezzler can work together to arrest and extradite. This means the country where the fugitive embezzler has a moral obligation to not provide protection and other facilities for the corruptor. Conversely, if the state provides a favorable position for a corrupter, UNCAC does not regulate the legal sanctions which may be subject to that country, but based on the general principles recognized in international law (General Principles of international law), the country concerned can not only be subject to moral sanctions in the form of exclusion from the international world, but also other sanctions such as economic embargoes.

Article 43 of UNCAC mentioned that participating countries are obliged to cooperate in a criminal matter, if necessary and consistent with the legal system of each country. Participating countries should consider to help each other in investigations and civil and administrative litigation related of corruption. Therefore, the form of international cooperation that can be done in the recovery of criminal assets stored corruption abroad, as set forth in the UNCAC are:

1. Extradition[9]

Extradition is possible to be done by considering the following things:

• the crimes committed included in the double criminality;
• extradition can be done to the convention, even though the crime did not include the double criminality;
• One of the crimes committed are crimes that can be extradited, while others are not due to legal reasons;
• Every crime committed, including in Article 44 of UNCAC, should be included as a crime that can be extradited in the agreement. For countries that have legal conventions (UNCAC) as the basis for extradition must assume that the crimes included in this convention is not a political crime;
• If there is no extradition treaty, the Convention can serve as a legal basis for extradition;
• Countries that require the existence of an extradition treaty, must be declared, Is this convention as the legal basis of extradition;
• For countries that do not require the extradition treaty, should mention the crime that can be extradited under these conventions;
• Extradition should fulfill national law requirement of state occurred and state occurred can refuse it;
• State (contracting party) must submit to a simplified extradition procedure information / facts / evidence needed;
• arrest can be made for those who asked for the extradition occurred during the extradition process;
• If the suspects are not extradited because the suspects are citizens then the government should prosecute those cases  processing in accordance with national law and the countries that are relevant to work together;
• If the citizens can be extradited on the condition, that person must get a  punishment in their country, countries must work together (conditional extradition);
• If the extradition of serving a prison sentence was rejected for reasons of its citizens, countries are asked to consider the appropriate national law regarding the possibility of serving time in the country asked if the state asked the beggar;
• Treatment and justice must be guaranteed for people who are in the process of UNCAC implementation of Article 44 in accordance with national law where the person is;
• Nothing in this Convention shall be interpreted as an obligation to extradite if the requested state has a strong reason that the request was filed for the purpose of condemn someone for reasons of gender, race, religion, nationality, ethnicity, or politics or a position;
• State (contracting party) can not reject the extradition request on the grounds that the crime was also related to fiscal issues;
• Before refusing extradition request, the state asked to hold consultations with farmers state if necessary, to exchange views and provide relevant information;
• State (the contract) must seek approval or creation of bilateral and multilateral agreements or enhance the effectiveness of extradition;

 

Some good examples of bilateral extradition treaty or a multilateral can be found here or ASEAN extradition agreements, or bilateral agreements with Indonesia, which made the countries  show a safe place for fugitive comes from Indonesia, such as the United States, Germany, Netherlands, Republic of China (PRC), and others.

1. Transfer Of Prisoner

In this context, the countries can be considered to hold bilateral or multilateral agreements on the transfer of prisoners to the territory with imprisonment or with other forms of deprivation of liberty for a crime which, according to this convention so people could finish their punishment there

1. Mutual Legal Assistance

MLA is one form of cooperation that can be taken to implement StAR. The presence of MLA played an important role in bridging the return of assets in corruption cases. MLA scope includes investigation, prosecution, and litigation against the accused[10] which is an important point in requesting cooperation by the state, the state requested, and bilateral institutions and multilateral. Of course, this MLA position should also be realized in the form of treaties and extradition.

MLA form in accordance with the convention is

• taking evidence or statements from people;
• give court documents;
• conduct investigations, seizure or confiscation and freezing or congealing;
• investigate the goods and location;
• provide information, evidence and expert evaluation;
• provide original documents or certified copies and records that are relevant including government records, banks, financial companies or businesses;
• identify or track the results of crime, property, facilities or other things for evidentiary purposes;
• facilitate attendance people who become volunteers in the requested country; other assistance that does not conflict with national law required the state party;
• identify, freeze and track crimes in accordance with the provisions of Chapter V of this Convention;
• return of assets pursuant to the provisions of this convention.

In practice, Indonesiaas a request country has been requested to the police for blocking the investigator’s account through Interpol NCB Interpol Indonesiato Hong Kong and Singapore.[11] In this case, blocking can only be filed by the Department of Justice and Human Rights to the Minister of Justice of Hong Kong and Singapore. Hong Kong Department of Justice grants while Singapore refused to block due to the absence of MLA treaty between Indonesia and Singapore.[12]

Therefore, building a community dialogue in the MLA is very important in jointly conduct investigations, prosecution, and the trial process. Many things can be denied that the involvement of other countries in providing aid expected. In fact, a lot of corruption money is saved in financial institutions, likes in European countries andSwitzerlandand of course to their advantage. The question then arises that how to carry out any extradition treaty or MLA if there is no MLA treaty exist, how the world Bank can make requesting state and the requested state to work together in this case?. Does the World Bank can make or use his influence to developing countries to return stolen assets? and many other questions are relevant in supporting  StAR.

 

 

1. The Transfer Of Criminal Proceedings

State (contracting party) must consider the possibility of transfer to the other side of the prosecution process with the reason for the interest of good judicial process.

1. Law Enforcement Cooperation

Cooperation between law enforcement agencies of member states (parties) should be done with the legal system and their respective governments, which aims to improve the effectiveness of law enforcement actions to combat against crime under this Convention. Law enforcement cooperation should also be formulated in the form of bilateral or multilateral agreements direct cooperation between law enforcement and to adjust the agreement or arrangement if it already exists. Examples of cooperation between law enforcement can be seen in agreement between the Corruption Eradication Commission (KPK) with federal Beaureau Investigation (FBI)United States.

1. Joint Investigation should be formulated in the form of bilateral or multilateral agreements. In case no agreement with the investigation, an investigation conducted by the joint agreement on a case by case.
2. Special Investigation Techniques to form a special investigative technique such as that conducted electronic surveillance or other forms of surveillance or covert operations in the area and to allow evidence obtained from these activities accepted by the court. Based on the description above , corruption asset recovery mechanism can be formulated in the following chart form:

B. Factors Affecting the Implementation Mechanism of Asset Returns (StAR) in the practice of States, particularly in Indonesia.

Asset recovery mechanism results in corruption practices countries can be said to have almost the same tendency. In this case, the factors that influence the implementation of asset returns, particularly in the national legal framework as described in the asset recovery mechanism for corruption, are:

1)      The transition from the realm of criminal law into the civil jurisdiction of the asset return is not easy to be done:

2)      understanding and sense of loss to this country is still subject to dispute;

3)      The difficulty in interpreting Article 32 paragraph (1) Corruption Act;[13]

4)      There is a difference between the formulation of the relevant provisions of Article 32 paragraph (1), Article 33[14], Article 34[15] with Article 2 paragraph (1) and Article 3 of Law Corruption;

5)      The formulation of Article 32 paragraph (2) Corruption Act may lead to a debate after the filing of a civil lawsuit verdict (criminal) for free;

6)      What is meant by “civil lawsuit against the heirs of” the suspect, accused or charged in Article 33-34 and 38-C [16] Corruption Act coincided with the rights issue of human rights;

7)      Article 38C of Corruption Act can cause problems, related to the possibility civil lawsuits against convicted, even their heirs, based on “alleged or reasonably suspected” that the property in question is derived from criminal acts of corruption, after the decision is permanent legal force;

8)      Lack of a special civil procedural law in criminal acts of corruption. Corruption Act opened the possibility of reversing the burden of proof (Article 37), the defendant must prove that his property was not obtained because of corruption. In the event that the defendant did not prove the property is not balance with an additional source of income or wealth, then this information is used to strengthen the evidence already exists that the accused had committed criminal acts of corruption. The burden of proof on the defendant is called a burden of proof reversed.

Factors that influence the implementation of asset recovery, as stated above, recognized in the national sphere. But given a mandate in implementing UNCAC participating countries should consider a national law (party), then the above argument can be said to be “right” to identify cases of corruption inIndonesia, especially those that tend to increase every moment.

Identify the factors that affect asset returns can be bridged to get a concrete solution to the fundamental problem of return of assets is always a debate. For example, the debate about the burden of proof reversed in the Corruption Act. A condition of the burden of proof is reversed causing the problem, given the priority to the application of the principle of formal truth. In addition, in the ordinary civil procedural law, the burden of proof is the duty of the prosecutor or plaintiff, the JP or disadvantaged institutions. JPN obliged to prove, consist of:

1. That there is a significant loss to the state;
2. State financial losses as a result of or related to a suspect action, the accused, or punished;
3. There’s a suspect, accused, or convicted can be used to restore the state’s financial losses.

In the context of UNCAC, asset recovery, although the problem has been regulated in detail, still found in the constraints or obstacle  factors that affect asset returns. These factors consist of:

1. The difference between a country’s legal system with other countries, especially those with European continental  background and  Anglo-Saxon
2.  Application of Article 46 of UNCAC about MLA is not maximal applied by member countries;
3. The absence of a judge decision that the law has an (inkracht) about the execution of an asset or material evidence relating to corruption (the return on management practices of corruption in Indonesian assets);
4. The absence of regulations supporting UNCAC, making it difficult to implement all the provisions contained in the UNCAC asset recovery mechanisms, especially the corruption of the stored outside the country
5.  In the process of asset returns that require expensive and time consuming;
6.  Difficulty doing the freezing of assets suspected to result from criminal acts of corruption, especially assets held abroad

Chapter V

On the basis of the previous closing, some conclusions can be drawn are:

1. Corruption asset recovery mechanism can be done in two ways, namely by using legal instruments of criminal and civil law. In cases of assets which may be reasonably suspected of corruption on foreign stored, keep moving forward with the legal instruments national, so UNCAC already stated about  asset recovery mechanism (Article 51-59 UNCAC) which is equipped with a mechanism of international cooperation to restore these assets (Article 43-50 UNCAC)
2. Factors that influence the implementation of the return of state assets in Indonesia in particular practice is a matter of a few articles in the formulation of Corruption Act (Chapter 32-34, the Corruption Act 38), differences in legal systems that followed, the lack of supporting instruments UNCAC, expensive costs, and duration of time.

 

References

Adi Ashari, Mutual Legal Assistance in the Area of Seizure and Expropriation, Journal of Indonesian Legislation, Vol. 4 No. 1, March 2007.

Anthony Kennedy, 2006, Designing a Civil Forfeiture System: an Issue List for Policymakers and Legislators, 13 (2)  Journal of Financial Crime.

Bismar Nasution, Stolen Asset Recovery (StAR) Initiative in Economic Law Perspective, Paper,Jakarta28-29 Nopember 2007.

Budiman Peranginangin, Indonesian Experience in handling Mutual Legal Assistance in Criminal Matters, Seminar, Bogor, 18 September.

Milles Mattew and A. Michael Hubeman, 1982, Qualitaive Data Analysis, translated by Tjetjep Rohendi Rohini, UI Press.

Peter Mahmud Marzuki, Stolen Asset Recovery (StAR) Initiative in Civil Law Perspective, Paper,Jakarta28-29 Nopember 2007.

Romli Astasasmita, Stolen Asset Recovery, accessed 01 August 2007.