BACKGROUND
Globalization on economic has various impacts to the society in all over the world. It urges states to create law instrument which can regulate the development of economic globalization itself. One of the impact is the appearance of money laundering crime. As time goes by, the development of economic accompanied by the development of society created some problems that international society must solve.
Money laundering crime is deal with other serious crimes such as corruption, bribery, goods smuggling, banking, black market, human trafficking, narcotics and psychotropic, illegal weapons trade, and white collar crime.[1] Those crimes are generating money in big scale, and the actor does not use the money directly because it will be tracked easily by legal enforcer. Usually, the actor put the money into financial system or any other kind of business so the money will not see as the result of crime.
According to some legal experts, for instance J. Koers (the Netherland’s public attorney), money laundering is a way to distribute result of crime into a legal financial circulation and cover the origin where the money comes from. Pamela H. Bucy said, “money laundering is the concealment of the existence nature or illegal source of illicit fund in such a manner that the funds will appear legitimate if discovered.”[2] Meanwhile, according to Department of Justice Canada, stated that “money laundering is the conversion or transfer of property, knowing that such property is derived from criminal activity, for the purpose of concealing the illicit nature and origin of the property from government authorities.”[3]
This paper will discuss how is the history of money laundering, international instrument, and the enforcement of money laundering law in Indonesia which contain the explanation that money laundering crime is double crimes, active and passive actor, and PPATK’s duties and obligations.
PROBLEM FORMULATIONS
1. How is the development/history of money laundering crime?
2. How is the legal enforcement of Money Laundering in Indonesia?
I. The History of Money Laundering
This kind of criminal act started happen in 1920, the actors of organized crime in United States of America conducted money laundering through laundry business.[4] Some sources stated that it happened during 1930-1940.[5] They established laundry business as a place to hide their money gained by dirty ways.[6] Here, the term “dirty ways” can be from corruption, bribery, goods smuggling, labor smuggling, imigran smuggling, banking, black market, drugs, slave trade, illegal arms trade, and white collar crime.[7] Since that time, an attempt to hide money gained by dirty ways called as “Money Laundering”. Still in USA, in 1984 this kind of crime happened again enormously that also involved the Interpol.[8] This crime made a big country such as USA was panicking.[9] In order to overcome money laundering that frequently happen, in 1986 USA enacted Money Laundering Control Act of 1986 (MLCA) which also the first law instrument in the world owned by USA towards money laundering act.[10] In 2001, USA enacted The Unitting and Strengthening America Providing Appropriate Tools Required to intercept and obstrac Terrorism Act (US Patriod Act of 2001).[11] It can be concluded that USA is the first country that criminalized criminal act of money laundering. Besides, USA was also very persistent to hold international conference to eradicate the crime.
Not only USA, some countries also tried to establish national or regional institutions to eradicate money laundering such as France, Argentine, Australia, Andorra, and Anguilla (the Egmount Group).[12] United Nations adopted Politic Declaration and 40 recommendations Financial Action Task Force (FATF)[13] also Action Plan regarding eradication of money laundering marked by the adoption of United Nations Convention Against Transnational Organized Crime. Asian and Europe countries also did the same. In 1991, the Council of European Communities generated Council Directive 91/308/EC on Prevention of the Use of the Financial System for the purposes of Money Laundering. This guidance invited all countries member to participate in eradication of money laundering. In 1995, the Egmont Group of Financial Inteligence Unit was formed to develop exchange of inteligence data in money laundering including helping other countries to establish money inteligence institution.
II. International Regulations of Money Laundering
It is already explained above at a glance regarding regulation of money laundering in some countries, especially USA which the first country that criminalized money laundering act. In 1988, it was formed United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances which function to persuade all countries to eradicate and criminalize money laundering act. In the context of narcotic drugs and psychotropic sale and purchase, there must be highlighted that money laundering act comes the most from it. That convention also has purpose to regulate certain international relation activity, decide norms, rules and procedure in order to eradicate money laundering act, and to decrease the disparity of law among the countries.[14] It also establihed International Anti Money Laundering Legal Regime that produce from article 3 (1) (a) which has function to supervise activities related to narcotic drugs sale and eradicate it.
After United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, still in the same year 1988, was established Vienna Convention. This is not only regulate about trafficking of narcotic drugs and psychotropic, but also regulate about corruption, organized crime, terrorism, gambling, and any other act that produce money in big scale.[15]
Another instrument is, 40 recommendations issued by FATF in 1990. These 40 recommendations has been revised in 1996 and 2003. In 2001, the 8th special recommendations added in order to combat and financing terrorism. In 2004 the IX recommendations added, these new standards recommended the criminalization of the financing of terrorism in accordance with the UN Convention for the Suppression of the Financing of Terrorism, address practices used by terrorists to finance their activities (such as the misuse of wire transfers, alternative remittance systems and non-profit organizations) and call for the implementation of specific asset freezing, seizing and confiscation mechanisms.[16] In general, this recommendations are having purpose to urged states to eradicate the money laundering act.
III. Legal Enforcement towards Money Laundering Crime in Indonesia
Indonesia did criminalization towards money laundering crime in April 2002.[17] Indonesia enacted Law no. 15 of 2002 which revised by Law no. 25 of 2003, this revision is conducted because the previous regulation is considered still less of enforcement. The revision this law is so fast because, according to the fact, criminalization towards money laundering is not based on self-awareness but international compulsion. This kind of crime is classified as cross country crime, so if a state does not apply the regulation about money laundering properly, then international body such as FATF will take action. For instance, Indonesia is a black list country under FATF in 2001 because Indonesia was not really applied the money laundering regulation properly. After went through so many evaluations, Indonesia revoked Law no. 25 of 2003 and ammended it by creating Law no. 8 of 2010 regarding Prevention and Eradication of Money Laundering (UU TPPU).[18]
Money Laundering is categorized as double crime. This called double since it fulfills two qualifications which are predicate offence and follow up crime. For instance, someone generates money in a big amount by conducting drugs sale and purchase, gambling, smugling, and others. After that, to avoid suspiciousness from the legal enforcer, he or she tries to disguise that money by transfering, buying, or establishing other business so that the money will not be tracked by legal enforcer. Here, the called predicate offence is when he or she conducts drugs sale and purchase, gambling, smugling, and others. The follow up crime is when he or she try to disguise the money in some other ways so that will not be tracked and attracted suspiciousness. In practice, legal enfocers are facing difficulties because it is quite hard to track this kind of crime. The reasons are, this crime is sometimes paperless, discernible, conducted by complicated ways which supported by high technology that lead to what so called sophisticated crimes.[19] Even this crime is called as double crimes, the action is a separate crime. It means that in prejudgment, the public attorney shall refer to the first crime (predicate offense) and then the follow up crime. So, the prejudgement shall be ordered cumulatively.[20]
The actor of money laundering can be categorized into two, active and passive actor. The first is, active actor, is everyone who commits money laundering no matter he or she also conducts predicate offense continued by follow up crime (principle violator) or only transfer, buy, or change the money (aider) gained by any conduct as mentioned in article 3 and 4 of Law no. 8 of 2010. The principle violater will get special prejudgement or as councursus realis actor, meanwhile, the aider only get one prejudgment which is as a distributor of the money from the predicate offence. The second actor is, passive actor, everyone who enjoy the fruit of crimes[21] or also called as (abettor). Abettor is regulated under article 5 of Law no. 8 of 2010.
Article 3 stipulates that “every person who puts, transfers, moves, shops, pays, grants, entrusts, takes to overseas, changes the form, changes with currency or important letter or other conducts towards wealth that he or she knows or properly guessed come from criminal as mentioned in article 2(1)[22] with purpose to hide or disguise the origin of the wealth be criminalized because of money laundering crime by imprison maximum twenty years and maximum fine ten billion rupiahs.
Article 4, the main point is every person who hides, disguises the origin, source, location, allocation, transfers the rights, or the real ownership towards wealth that he or she knows or properly guessed come from criminal as mentioned in article 2(1) be criminalized because of money laundering crime by imprison maximum twenty years and maximum fine five billion rupiahs.
Article 5, every person who accepts or overbearing a placement, a transfer, a payment, grant, contribution, depositing, a changing, or using wealth that he or she knows or properly guessed come from criminal as mentioned in article 2(1) be criminalized because of money laundering crime by imprison maximum 5 years and maximum fine a billion rupiahs.
To help the eradication of money laundering, there is Financial Intelligence Unit (FIU) or in Indonesia well known as Center of Report and Money Transaction Analysis (PPATK). PPATK is an independent institution which is formed and established by Indonesian Government in 2003 based on President Decree no. 82 of 2003 regarding the implementation of authority of Center of Report and Money Transaction Analysis.[23] The duties and authorities of PPATK are regulated in Law no. 8 of 2010, there are so many regulations on how PPATK conducts its duties, obligations, and authorities. Those are can be seen in article 37-44 of Law no. 8 of 2010. One of the most important duty of PPATK is regarding the result of analysis towards the transaction in certain sum and suspicious trancsaction that shall be reported to legal enforcer whether be asked or not. Even PPATK provides analysis report, it does not mean the legal enforcers can only ask the report from PPATK, they can directly ask to supervisor or financial provider such as bank, as long as still regarding money laundering. It can be seen in article 27, 28, and 72 of Law no. 8 of 2010.[24] Regarding financing system that needed is burdened to State Budget, regulated under article 63.[25]
The example of money laundering crime in Indonesia is represented by Muhammad Nazaruddin, the ex-Demokrat Treasurer. On 11 Mei 2016, the public attorney of Corruption Eradication Commission, Kresno Anto Wibowo, proposed 7 years imprison and 1 billion fine subsidiary 1 year imprison. Kresno believed that Nazaruddin conducted money laundering Rp 580 billion. The money mostly gained from gratification from PT Duta Graha Indonesia Rp 23.1 billion. Besides, he also received gratification from PT Nindya Karya Rp 17.25 billion via Heru Sulaksono. Nazaruddin is proven conducted money laundering since October 2010 until 15 December 2014 Rp 500 billion. He also disguise his wealth Rp 80 billion on 15 September 2009-22 October 2010. He violated article 3 Law no. 8 of 2010 jo. Article 55 section (1) Indonesia Penal Code.[26]
CONCLUSION
Money Laundering crime was appeared between 1920-1940 in USA as the impact of economic globalization. The crime actor used Laundry business as a place to hide and disguise the money gained from criminal activity, so that the money would not see derived from criminal act.
In 1988, it was formed United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances which function to persuade all countries to eradicate and criminalize money laundering act. In the same year 1988, was established Vienna Convention. This is not only regulated about the trafficking of narcotic drugs and psychotropic, but also regulate corruption, organized crime, terrorism, gambling, and any other act that produce money in big scale. 40 recommendations which were revised several times and had been added by nine new recommendations.
Indonesia created regulation about money laundering in 2002, enacted Law no. 15 of 2002 which was amended by Law no. 25 of 2003, and the newest regulation is Law no. 8 of 2010. Money laundering is double crimes, the position of money laundering here as follow up crime. Meanwhile, the first crime (predicate offense) is can be various depend on the actor of the crime. It is known that the actor divided into two, active and passive. Active actor is the one who commits the first and the follow up crime, or only commits follow up crime. Passive actor is the one who enjoys the result of the crime only. The efforts to eradicate money laundering activity is supported by PPATK as institution which supervise the financial circulation in Indonesia. One of the duty of PPATK is making report or result of analysis towards the transaction in certain sum and suspicious transaction that shall be reported to legal enforcer.
REFERENCES
Adriawan Dian, Pengaturan Kejahatan Money Laundering (Pencucian Uang) di Beberapa Negara, Jurnal Hukum Prioris, vol. 1, no. 1, September 2006.
Bucy Pamela H., White Collar crime: Cases and Material, St. Paul Minn: West Publishing Co., 1992.
Dharyanto Ikang, Tindak Pidana Pencucian Uang (Money Laundering) di Indonesia, Law Review, Fakultas Hukum Universitas Pelila Harapan, vol. III, no.3, 2003.
Garnasih Yenti, Penegakan Hukum Anti Pencucian Uang dan Permasalahannya di Indonesia, RajaGrafindo Persada, Jakarta, 2015.
Halim Pathorang, Penegakan Hukum Terhadap Kejahatan Pencucian Uang di Era Globalisasi, Total Media, Yogyakarta, 2013.
Harmadi, Kejahatan Pencucian Uang (Money Laundering), Setara Press, Malang, 2011.
Hidayat Arif, Tempo.co, https://nasional.tempo.co/read/770111/kasus-pencucian-uang-nazaruddin-dituntut-7-tahun-penjara (accessed 8th January 2018).
Kristiana Yudi, Pemberantasan Tindak Pidana Pencucian Uang perspektif Hukum Progresif, Thafamedia, Yogyakarta, 2015.
Meliala Adrianus, Menyingkap Kejahatan Krah Putih, Pustaka Sinar Harapan, Jakarta, 1993.
United Nations Office on Drugs and Crimes, UN Instruments and Other Relevant International Standards on Money-Laundering and Terrorist Financing, [website], https://www.unodc.org/unodc/en/money-laundering/Instruments-Standards.html, (accessed 5th January 2018).
[1] Pathorang Halim, Penegakan Hukum Terhadap Kejahatan Pencucian Uang di Era Globalisasi, Total Media, Yogyakarta, 2013, p. 9.
[2] Pamela H. Bucy, White Collar crime: Cases and Material, St. Paul Minn: West Publishing Co., 1992, p. 128.
[4] Harmadi, Kejahatan Pencucian Uang (Money Laundering), Setara Press, Malang, 2011, p. 1.
[5] Ikang Dharyanto, Tindak Pidana Pencucian Uang (Money Laundering) di Indonesia, Law Review, Fakultas Hukum Universitas Pelila Harapan, vol. III, no.3, 2003, p. 40; Dian Adriawan, Pengaturan Kejahatan Money Laundering (Pencucian Uang) di Beberapa Negara, Jurnal Hukum Prioris, vol. 1, no. 1, September 2006, p. 49.
[6] Ikang Dharyanto, op. cit., p. 40. As quoted from J.E Sahetapy, Business “Uang Haram”, KHN, Jakarta, 31 Mei 2003, p. 11.
[7] Pathorang Halim, op. cit., p. 9, 31.
[8] Harmadi, op. cit., p. 1.
[9] Adrianus Meliala, Menyingkap Kejahatan Krah Putih, Pustaka Sinar Harapan, Jakarta, 1993, p. 21.
[10] Ibid. p. 2.
[11] Ibid. p. 3.
[13] The FATF is an inter-governmental body which sets standards, and develops and promotes policies to combat money laundering and terrorist financing. It currently has 36 members: 34 countries and governments and two international organisations; and more than 20 observers: five FATF-style regional bodies and more than 15 other international organisations or bodies.
[14] Dian Adriawan, op. cit., p. 51.
[15] Ibid. p. 52.
[16] United Nations Office on Drugs and Crimes, UN Instruments and Other Relevant International Standards on Money-Laundering and Terrorist Financing, [website], https://www.unodc.org/unodc/en/money-laundering/Instruments-Standards.html, (accessed 5th January 2018).
[17] Yenti Garnasih, Penegakan Hukum Anti Pencucian Uang dan Permasalahannya di Indonesia, RajaGrafindo Persada, Jakarta, 2015, p. 29.
[19] Ibid. p. 33.
[20] Ibid. p. 34.
[22] The first objective element to prove crime of money laundering is puts, transfers, moves, shops, pays, grants, entrusts, takes to overseas, changes the form, changes with currency or important letter or other conducts towards wealth that he or she knows or properly guessed come from criminal as mentioned in article 2(1).
The second objective element is the wealth that is distributed must come from another crime which is mentioned in article 2(1).
[23] Dharmadi, op. cit., p. 108.
[25] Yudi Kristiana, Pemberantasan Tindak Pidana Pencucian Uang perspektif Hukum Progresif, Thafamedia, Yogyakarta, 2015, p. 146.
[26] Arief Hidayat, Tempo.co, https://nasional.tempo.co/read/770111/kasus-pencucian-uang-nazaruddin-dituntut-7-tahun-penjara (accessed 8th January 2018).
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