Although the two articles are intended for different purposes, they still create a conflict of meaning that is expressed in the two groups of articles, causing ambiguity. On the one hand, the Public Prosecutor does not need to prove the original crime, while the Defendant must prove that his assets do not originate from or are related to the suspected criminal act (probable caused).

In essence, Article 69 of the TPPU Law aims to emphasize the position of TPPU as “sui generis” (Independent Crime) while Article 77 and Article 78 of the TPPU Law place importance on overcoming difficulties in proving the origin of assets charged to the Defendant which may not be traced.

Reverse Burden of Proof Mechanism

The technical evidence in the TPPU trial in practice is that the Public Prosecutor first proves the origin of the assets suspected of originating from a criminal act as in Article 2 paragraph (1) contained in the indictment, then the Defendant proves that his assets are not related to or originate from a criminal act in accordance with the Public Prosecutor's indictment, this is related to determining the existence of a criminal act the Public Prosecutor must fulfill sufficient preliminary evidence, with a minimum of 2 (two) pieces of evidence. And also to strengthen the Judge's opinion that the Defendant has committed a criminal act with one of the predicate crimes contained in the provisions of the TPPU Law.

The TPPU Law has not accommodated how the procedural procedures or consequences of the reverse burden of proof are related. The basis for observing the procedural law for TPPU is Law of the Republic of Indonesia Number 8 of 1981 concerning the Criminal Procedure Code (KUHAP). The application of Article 183 of the KUHAP which is in line with the principle of actori incumbit onus probandi means that whoever sues must prove it.

The reverse burden of proof as stipulated in Article 77 and Article 78 of the TPPU Law is essentially not interpreted as an obligation that contradicts the Presumption of Innocence Principle contained in Article 66 of the KUHAP and the Non self Incrimination Principle (a defendant has the right not to provide information that will incriminate or harm him in court). This is because of the urgent and specific nature of TPPU. Thus, these provisions should be used by the Defendant to refute the arguments put forward in the indictment, and provide information that benefits him.

Reversal of the Burden of Proof or Shifting of the Burden of Proof?

Considering that the Anti-Money Laundering regime is to confiscate assets, a shift in the burden of proof needs to be applied as an extraordinary measure (extraordinary measurement). Thus, it is necessary to seek alignment to reduce the gap for the effectiveness of applying the shift in the burden of proof with the consistency of formulation in Article 77 and Article 78 of the TPPU Law, namely replacing the “Obligatory” norm with the “Right” norm in Article 77 a quo so as not to create an understanding that contradicts the presumption of innocence.

In this case, it is more towards Shifting the Burden of Proof than Reversing the Burden of Proof, which initially was only the domain of the Public Prosecutor (conventional burden of proof) then experienced a shift to the Defendant to prove the Defendant's guilt and uncover the criminal acts committed by the Defendant and the parties involved.

Read Also: Ultra Petita Decision and New Direction of Judge Progressivity

According to the Legal Dictionary, Shifting Burden of Proof is defined as: “The Process of transferring the obligation to affirmatively prove a fact in controversy to the party”. The essence of the meaning of reversal burden of proof and shifting burden of proof is different. If shifting burden of proof is defined as "shifting the burden of proof"', then reversal burden of proof is defined as "reversing the burden of proof".

References

  • Lilik Mulyadi, ‘The Principle of Reversing the Burden of Proof Against Corruption Crimes in the System Criminal Law Indonesia is Connected to the United Nations Convention Against Corruption 2003’ (2015) 4 (1) Journal of Law and Justice 101
  • Sutan Remy Sjahdeini, The Ins and Outs of Money Laundering and Terrorism Financing, 1st printing (Jakarta: PT. Pustaka Utama Grafiti, 2004)
  • Tb. Timan, The Law of Evidence of Money Laundering, 1st printing (Bandung: MQS Publishing, 2006)
  • Wiyono, R, SH, Discussion of the Law on the Prevention and Eradication of Money Laundering, 1st printing (Jakarta: Sinar Grafika, 2014)

*This article represents the personal opinion of the author and does not represent the views of the editors of Literasi Hukum Indonesia.