Legal Literacy- This article discusses the definition of money laundering (TPPU), its extraordinary handling, evidence in TPPU, and reverse burden of proof in TPPU. This article explains that evidence in TPPU involves proving the element of "assets" suspected of originating from a criminal act, while reverse burden of proof is limited and balanced, and is not applied to all cases. This article also discusses the difference in meaning between Article 69 and Article 77 as well as Article 78 of the TPPU Law in the reverse burden of proof on assets.

Definition of Money Laundering

Money Laundering (TPPU) has unique characteristics, requiring comprehensive understanding and separate handling. Money laundering can be defined as “the use of money obtained from illegal activities by concealing the identity of the individual who obtained the money and converting it into assets that appear to have been obtained from legitimate sources”. Or it can be simplified as “a process to make dirty money look clean”.

TPPU is an extraordinary crime (extraordinary crime) so its handling must also be extraordinary. Law Number 8 of 2010 concerning the Prevention and Eradication of Money Laundering (UU TPPU) no longer emphasizes pursuing the perpetrator (Follow The Suspect), but on tracing and tracking assets (Follow The Money) that are suspected to be the result of criminal acts.

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.”

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.