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Shifting the Burden of Proof in Money Laundering Crimes (TPPU)

Dini Wininta Sari, S.H.

Contributor

12 Mar 2023 · 00:00 12 March 2023 00:00 WIB 7 minutes reading time: 7 minutes 2 read

Legal Literacy - This article discusses the definition of money laundering crimes (TPPU), its extraordinary handling, evidence in TPPU, and reverse proof in TPPU. This article explains...

Shifting the Burden of Proof in Money Laundering Crimes (TPPU)

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Table of Contents

Definition of Money Laundering
Evidence in TPPU
Reverse Burden of Proof in TPPU
Reverse Burden of Proof Mechanism
Reversal of the Burden of Proof or Shifting of the Burden of Proof?
References

Section 2/3: Evidence in TPPU

Evidence in TPPU

Evidence in TPPU as one of the extra ordinary measurements, namely proving the element of “assets” that are suspected of originating from criminal acts in Article 2 paragraph (1) of the TPPU Law. In this case, it is necessary to prove the original crime first because assets that are suspected of originating from or being related to a criminal act originating from the original crime are the subject in TPPU.

Reverse Burden of Proof in TPPU

The concept of reverse burden of proof in TPPU is a concept of limited and balanced reverse burden of proof. Limited means that the reverse burden of proof is limited to certain criminal acts, while balanced means that the public prosecutor still has the obligation to prove the indictment.

This Reverse Burden of Proof itself is not applied to all cases, but within the limits that as minimally as possible do not violate the protection and respect for the rights of the Defendant. Reverse burden of proof is applied to criminal acts that are difficult to prove and require more comprehensive handling.

Reverse burden of proof on assets in TPPU as in Article 77 and Article 78 of the TPPU Law which places the burden of proof on the Defendant to prove with sufficient evidence that the assets he obtained did not come from the proceeds of crime as referred to in Article 2 paragraph (1) of the TPPU Law.

Article 77 of the TPPU Law: “For the purposes of examination in court, the Defendant is obliged to prove that his assets are not the result of a criminal act”.

Article 78 of the TPPU Law: (1) In the examination in court as referred to in Article 77, the judge orders the Defendant to prove that the assets related to the case do not originate from or are related to a criminal act as referred to in Article 2 paragraph (1); (2) The Defendant proves that the assets related to the case do not originate from or are related to a criminal act as referred to in Article 2 paragraph (1) by submitting sufficient evidence.

However, in Article 69 of the TPPU Law, it is not obligatory to first prove the original crime to start the investigation, prosecution, and trial process. Article 69 of the TPPU Law: “in order to carry out investigation, prosecution, and examination in court against the crime of money laundering, it is not obligatory to first prove the original crime.”