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Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
[171] Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024
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Criminal Legal Protection for Bona Fide Third Parties
Over Assets in Corruption and Money Laundering Cases
Arief Patramijayaa*
a* Faculty of Law, Krisnadwipayana University, Indonesia. Corresponding author Arief Patramijaya, e-mail:
patra.m.zen@gmail.com
Article
Abstract
Keywords:
Assets of Bona Fide
Third Parties; Criminal
Law in Indonesia;
Corruption; Human
Rights; Money
Laundering.
Article History
Received: Sep 25, 2022;
Reviewed: Jan 23, 2024;
Accepted: Jan 30, 2024;
Published: Jan 31, 2024.
DOI:
10.28946/slrev.Vol8.Iss
1.2159.pp171-182
Criminal law in Indonesia has yet to guarantee justice and human rights of
bona fide (good faith) third parties in protecting their confiscated assets in
corruption and money laundering cases. Criminal procedural law is
inadequate in providing assessments for bona fide third parties. Therefore,
Economics and Anthropology are needed in the investigation stage up to the
evidentiary stage during trials. In this research, the main problems are
formulated as follows: (1) what is the concept, definition, and scope of the
assets of third parties in good faith in the laws and regulations in Indonesia?
(2) how is the application of legal provisions regarding the protection of
third parties with good intentions in corruption and money laundering? (3)
what is the ideal role of the Public Prosecutor and Judge in protecting the
property of a third party with good intentions in the criminal justice system?
Normative law research conducted in this article showed that (1) the concept
and understanding of bona fide third parties in civil law can be adopted in
criminal law; (2) the application of legal protection to bona fide third parties
over their assets in corruption and money laundering cases still depends on
the moral goodness of law enforcement officials; and (3) investigators,
prosecutors, and judges play an important role in protecting the human rights
of bona fide third parties in corruption and money laundering cases.
©2024; This is an Open Access Research distributed under the term of the Creative Commons Attribution License
(https://Creativecommons.org/licences/by/4.0), which permits unrestricted use, distribution, and reproduction in
any medium, provided the original works are properly cited.
INTRODUCTION
The normative space for protecting third parties' assets in good faith in corruption cases is very
limited; the verdict will be passed at that time. Article 19 paragraph (1) Law No. 20/2001 on
Anti-Corruption Act stated, "A court decision regarding the confiscation of property not
belonging to the defendant shall not be passed if the rights of a bona fide third parties will be
harmed." However, in 12 criminal cases, the assets of third parties have been confiscated since
the investigation stage.
ISSN Print: 2541-5298
ISSN Online: 2541-6464
171-182
Arief Patramijaya
Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024 [172]
Each person's right to property (wealth/assets) is classified as one of the fundamental rights
in the tradition of Western Legal Thought.
1
The right to personal property is one of the basic
freedoms of citizens.
2
In Indonesia, the recognition and guarantee of a person’s right to
property are stated in the highest law (the Constitution), regulated in Article 28G paragraph (1)
of the 1945 Constitution of the Republic of Indonesia. However, in cases of corruption and
money laundering, police or prosecutor often confiscate assets belonging to third parties that
harm their human rights, as happened in 13 criminal cases, which will be described later.
Unfortunately, studies that have been conducted have yet to pay attention to protecting
third parties concerning their assets in the criminal due process. In the context of due process of
law, Marjodono Reksodiputro expressed that the due process of law is mistakenly linked only
to the application of criminal procedural law in proceedings against suspects and defendants.
3
Third parties whose assets have been confiscated should have been able to prove their assets
were obtained in good faith. Eradicating corruption and money laundering should and is
expected to receive support from the public. However, the case's investigation process,
prosecution, and examination should be conducted without violating human rights. Legal
protection should apply to the suspects, defendants, or convicts and the related third parties
and/or parties concerned. Research that has been written pays more attention to the roles and
functions of law enforcement agencies,
4
, the authority of law enforcers,
5
the evidentiary issue,
6
the perpetrator’s punishment,
7
, as well as research on the issue of returning assets in criminal
cases.
8
Therefore, this research aims to: 1. gain clarity on the concept, definition, and scope of
third parties and assets in the laws and regulations in Indonesia; 2. know the application of
legal protection for bona fide third parties in corruption and money laundering cases; and 3.
formulate the ideal roles of Investigators, Prosecutors, and Judges in providing protection for
bona fide third parties of their assets in corruption and money laundering cases.
The protection of third parties' human rights over their assets in the criminal justice system
in Indonesia is not as comprehensive as the regulations imposed on criminals and victims.
9
In
the investigation stage, the Investigator's subjective assessment largely determines the
confiscation of third-party parties' assets; likewise, in the prosecution stage, the status of
1
Randy E. Barnett, The Structure of Liberty. Justice and the Rule of Law (United Kingdom: Oxford University
of Press., 1998).
2
John Rawls, A Theory of Justice. Revised Edition (Massachussetts (US): Belknap Press of Harvard University
of Press., 1999).
3
Mardjono Reksodiputro, “Human Rights in the Criminal Justice System,” in Compilation of Essays, Third
Book, (Jakarta: Center for Justice and Legal Services, University of Indonesia, 2007).
4
Eddy Rifai, “Analysis of the Role of the Attorney General’s Office in Eradicating Corruption. Studies on the
Integral Approach of Criminal Policies to Eradicate Corruption in the Legal Territory of the Lampung High
Court,” (Faculty of Law, University of Indonesia, 2002).
5
Indah Harlina, “Position and Authority of the Corruption Eradication Commission in Law Enforcement.,”
2008.
6
Akil Mochtar, “Application of Reversal of the Load of Proof in Eradicating Corruption in Indonesia,” Faculty
of Law. Padjajaran University, 2012.
7
Hendar Soetarna, “Application of Conditional Crime in Corruption Crime,” Faculty of Law, Airlangga
University, 2004.
8
Hotma P.D Sitoempoel, “Implementation of Assets Recovery in Corruption Crime Cases According to
Indonesian Criminal and Civil Law,” Faculty of Law, Gadjah Mada University, 2016.
9
Andi Hamzah, Legal Dictionary (Jakarta: Ghalia, 1986).
Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
[173] Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024
evidence belonging to third parties in court decisions is determined. Investigators, prosecutors,
and judges have full authority to assess whether the parties' assets are related and directly
connected with corruption and money laundering as regulated in Article 29 of the Indonesian
Criminal Procedural Law.
The recognition of private ownership, including wealth (property), is one of the central
themes of justice
10
(Rawls, 1999). Justice is one of the main values that underlie human rights,
apart from equality and human dignity.
11
In essence, human rights are a defence for one's
freedom from cruelty and the use of oppressive power.
12
Due process of law does not allow
violating a legal provision under the pretext of enforcing other parts of the law.
13
The
eradication of corruption and money laundering is not allowed to inflict injustice and human
rights violations.
According to Gustav Radbruch, anyone may be tempted to presume justice only as of the
form in which moral goodness arises.
14
Therefore, legal regulations are needed so that any bona
fide third party is able to enjoy justice and human rights, including the right to private property.
The state must respect, protect, and fulfil the human rights of its citizens,
15
as a form of rule of
law.
16
Law enforcement officials must have a valid assessment basis before confiscating and
determining that third-party assets are confiscated for the state. An economic approach can be
used in criminal law,
17
to assess the good faith of third parties. Likewise, knowledge about
physiognomy and gesture analysis in the evidentiary process
18
can be used by judges to prove
the good faith of third parties in trials of corruption and money laundering cases.
RESEARCH METHODS
The form of normative legal research chosen in this study is an effort to offer an alternative
juridical solution to the protection of any third parties with good faith in criminal cases. This
research has the character of discovery (reform-oriented research): research that intensively
evaluates the adequacy of existing rules and recommends reforms to the desired rules.
19
The
form of this research is interdisciplinary research: Law and Economics. The types of data used
in this research are library data, data in documents, and literature material.
20
The data collection
tool used in this research is a literature study, where data is collected by searching and
reviewing secondary data. The data was collected through the bibliography study method,
21
which is a review of written information from legislation and 12 judges' verdicts. In terms of
10
Rawls, A Theory of Justice. Revised Edition.
11
Eva Brems, Human Rights: Universality and Diversity (Oxford (UK: Oxford University Press, 2001).
12
P.H.P.H.M.C. van Kempen, Criminal Law and Human Rights (Surrey & Burlington (UK): Ashgate Publishing
Limited, 2014).
13
Yahya Harahap (2003), p. 95.
14
Gustav Radbruch in Kurt Wilk (Translated) (1950), p. 73.
15
Manfred Nowak, Introduction to the International Human Rights Regime (Martinus Nijhoff Publishers, 2005).
16
Schmitt Carl, Hans Kelsen, and Hermann Heller, Legality & Legitimacy (Paper-Work Collection. Without
publisher., 1974).
17
Richard A. Posner, The Cost of Accidents: A Legal and Economic Analysis (University of Chicago Law
Review, 1970).
18
Ika Ariyati and Suwarjo, Advances in Social Science, Education and Humanities Research, 3rd International
Conference on Learning Innovation and Quality Education, 2019.
19
Peter Mahmud Marzuki, Legal Research, 2nd Edition (Jakarta: Kencana Prenada Media Group, 2008).
20
Rianto Adi, Social and Legal Research Methodology (Jakarta: Granit, 2010).
21
Abdulkadir Muhammad, Law and Legal Research. 1st Printing (Bandung: Citra Aditya Abadi Bakti, 2011).
Arief Patramijaya
Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024 [174]
form, this study is prescriptive, using research to obtain suggestions and solutions to the study's
problem.
ANALYSIS AND DISCUSSION
In Indonesian laws and regulations, "third parties" are referred to in various terms: a third party
with interest, another party, a party with family or other relationship, the aggrieved party, the
informed party, the most entitled party, and other related parties. These terms are used to refer
to a part of a person other than the suspect or defendant. In the realm of criminal law, the Anti-
Corruption Act in Indonesia has introduced the term "bona fide third parties", similar to the
provisions in Article 31 of the United Nations Anti-Corruption Convention, 2003.
The concept of “bona fide third parties” is better known in civil law. The definition of
good faith in civil law. In civil law systems, "bona fide third parties" is a well-established
principle closely associated with acting in good faith. This concept is crucial in various legal
contexts, such as property transactions and contract law. Good faith, or "bona fide," in civil
law, signifies honesty, fairness, and a sincere intention to execute an action or transaction
devoid of intent to defraud. It refers to individuals who acquire rights or enter into contractual
relationships without awareness of existing disputes or claims that could adversely affect their
interests. A bona fide third party is characterized by their honest belief in the legitimacy of their
actions, supported by reasonable grounds for such a belief. They are typically unaware of any
wrongful elements in the transaction they are involved in. This principle also underscores the
importance of fair dealing and reasonable commercial standards in business transactions. The
significance of protecting bona fide third parties in civil law cannot be overstated, as it
underpins confidence and stability in commercial dealings and property rights. It ensures that
individuals who unknowingly and without malintent engage in transactions are safeguarded
from future claims or disputes arising from factors beyond their control or knowledge. This
legal concept is pivotal in maintaining trust and dependability in legal and commercial spheres.
The term "bona fide third parties" contains two dimensions: 1. Subjective dimension, namely
good faith that leads to the meaning of honesty, this aspect of good faith focuses on the
individual's internal state of mind and intentions. It relates to the concept of honesty, referring
to the genuine belief or conviction held by a person regarding the legitimacy and lawfulness of
their actions or involvement in a transaction. This dimension assesses whether the individual
believed they acted correctly without intent to deceive or defraud. It is about the sincerity of the
individual's beliefs and intentions during the action or transaction, and; 2. The objective
dimension, in which good faith is given the meaning of rationality and appropriateness or
justice.
22
the objective dimension of good faith adds a layer of external evaluation to the
concept. It is not solely about what the individual believed or intended but also about whether
their belief or intention was reasonable and justifiable under the given circumstances. This
dimension involves a standard of rationality and appropriateness, where the individual's actions
are assessed against what a reasonable person would have believed or done in the same
situation. It is about the fairness and justness of the actions when viewed from an external,
more neutral standpoint. In legal practice, both these dimensions are crucial for determining the
22
Ridwan Khairandy, Good Faith in Freedom of Contract (Jakarta: Program Pasca Sarjana Fakultas Hukum
Universitas Indonesia, 2014).
Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
[175] Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024
status of an individual as a bona fide third party. The subjective dimension ensures that the
individual's integrity and honesty are considered. In contrast, the objective dimension ensures
that these personal beliefs and intentions are aligned with societal standards of reasonableness
and justice. This dual approach helps create a balanced and fair assessment of an individual's
actions, particularly when legal rights and obligations are determined based on the status of
being a bona fide third party.
The principles of good faith are essentially used to avoid acts of bad faith and dishonesty.
23
The opposite of a bona fide third party is a third party who is indeed involved and/or
participating in a crime, including corruption. Meanwhile, in the criminal act of money
laundering, third parties are involved in the layering process, namely the process of money
launderers reducing the traces of the origin of the money or assets obtained from crimes.
24
The
opposite of bona fide third parties are those individuals or entities knowingly involved or
participating in criminal activities, such as corruption. These parties act with full awareness and
often with the intent to facilitate or benefit from illicit acts. Their involvement is characterized
by a deliberate disregard for legal and ethical standards, starkly contrasting to bona fide third
parties who act in good faith without knowledge of underlying illegalities.
In money laundering, third parties can play a critical role in layering. Layering is a key
stage in money laundering where the origin of illegally obtained money or assets is obscured.
During this process, money launderers engage in complex financial transactions designed to
hide the illicit origin of funds. This can involve moving money through various accounts,
investing in different assets, or conducting financial transactions across multiple jurisdictions.
The involvement of third parties in this process can be either as unknowing participants, who
are bona fide and unaware of the criminal nature of the money, or as complicit parties, who
knowingly assist in the laundering process. The distinction between these two types of third
parties is critical in legal assessments and in applying anti-money laundering regulations and
enforcement actions. While bona fide third parties are protected by their good faith status, those
knowingly involved in money laundering activities face legal repercussions for their complicity
in the crime.
About forced enforcement in corruption and money laundering cases, third parties can
carry out several legal measures. R. Wiyono thinks that in corruption cases, parties in good
faith are third parties who do not realize that receiving goods from the defendant means causing
harm to others.
25
The legal protection for bona fide third parties in Indonesia, particularly in the
context of corruption and money laundering, is complex. These third parties are defined as
entities (individuals or institutions) separate from the suspects or defendants and the
investigators or prosecutors. Legal protection encompasses the rights to property and assets,
including tangible and intangible objects. The procedural law specifies different burdens of
proof for third parties in civil, criminal, corruption, and money laundering cases. In corruption
and money laundering cases, investigators, prosecutors, and judges are not mandated to base
their judgments on forensic financial examinations or to provide detailed legal reasons in
indictments or verdicts for confiscating assets. Returning assets to bona fide third parties can be
23
Charles Fried, Contract as Promise (Cambridge (US): Harvard University Press, 1981).
24
Yunus Husein, The Land of Money Launders (Jakarta: Pustaka Juanda Tigalima, 2008).
25
R. Wiyono (2005), p. 137.
Arief Patramijaya
Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024 [176]
lengthy and usually done through court decisions. There is a call for a more human rights-
centered approach in handling the rights of bona fide third parties, ensuring fair treatment
during legal proceedings.
The bona fide third parties in this research are given the meaning and scope of all parties
(persons and institutions) apart from the suspect (defendant) and investigators (prosecutors).
Meanwhile, according to statutory regulations, assets include all movable or immovable
objects, both tangible and intangible, obtained directly or indirectly. The property of a bona
fide third party is distinguished from the meaning of tainted or dirty property because it is
related to a criminal act and is not improper ownership of assets due to a crime.
26
The right to assets is regulated in international and regional instruments, as shown in Table
1. In Indonesia, the right to wealth is included in the Indonesian Constitution and Article 29
paragraph (1) of Law No. 39/1999 on Human Rights, which includes the right to hold property.
Table 1: Right to Property in International and Regional Instruments of Human Rights
International and Regional Instruments
Article
Universal Declaration of Human Rights
Article 17
African Charter on Human and People’s Rights
Article 14
American Declaration of the Rights and Duties of Man
Article 23
American Convention on Human Rights
Article 21
European Convention on Human Rights
Protocol 1
ASEAN Human Rights Declaration
Article 17
There is yet a uniformity in assessing the good faith of third parties in criminal law. The
applicable procedural law only regulates the evidentiary system, as shown in Table 2 below.
The evidentiary system is an entirety of the legal elements of evidentiary that are related and
connected and influence each other in a whole or unanimity.
27
Table 2 : Good Faith Evidentary System of a Third-parties
Civil Case
The third parties are obliged to prove special events that generate rights (Article 163
Herziene Indonesisch Reglement and Article 1865 of the Civil Code).
Criminal Case
The third parties are not burdened with proof (Article 66 of Criminal Procedural Law).
Corruption Case
The prosecutor must prove that the evidence belonging to the third parties is not related
to the criminal act committed by the Defendant (Article 39 paragraph (1) of the
Criminal Procedural Law concerning items subject to confiscation). On the other hand,
the third parties must prove that the assets confiscated during the investigation are not
dirty or tainted.
Money Laundering
Case
The third party is obliged to prove that the confiscated assets are unrelated to the crime
committed by the defendant. A pure, reversed burden of proof applies. (Article 77 and
Article 78 of Law No. 8/2020 on Money Laundering Act.
Criminal law in Indonesia distinguishes the confiscation of goods (assets) into two types:
1) Confiscation of goods as (with the status of) evidence in a verdict which is declared
confiscated for the state, to be destroyed or to be damaged until it can no longer be used, as
regulated in Article 46 paragraph (2) of the Criminal Procedural Law; and 2) Confiscation of
goods (assets) as an additional form of punishment, as regulated in Article 10 of the Criminal
Procedural Law. The provisions for confiscation of certain goods are basic provisions that aim
to return the assets of the crime.
26
Husein, The Land of Money Launders.
27
Martiman Prodjohamidjojo, Application of Reversed Evidence in Corruption Offenses (Bandung: Mandar
Maju, 2001).
Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
[177] Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024
The enforcement of legal protection for bona fide third parties' faith over their assets in
corruption and money laundering cases. Investigators, prosecutors, and judges are not obliged
to base their judgements on the results of forensic financial examinations. Legal considerations
and reasonings why assets are confiscated are not obliged to be described in the indictment.
Furthermore, no provision obliges the prosecutor to describe the reasons and the basis for
claiming the assets of third parties to be confiscated by the state in a warrant. In the verdict, the
judge is also not obliged to elaborate on the legal considerations as to why the assets of a third
party are confiscated for the state or otherwise returned to the entitled party. During a trial
examination, third parties whose assets have been confiscated are not obliged to be summoned
to provide a statement. Giving testimony under oath before the court is very important to
evaluate the good faith of the third parties. In this context, public prosecutors, lawyers, and
judges can use physiognomy knowledge and gesture analysis to assess the statements of the
third parties who testify in trials.
28
During a trial, particularly in cases where assets have been confiscated from third parties,
the legal procedures surrounding the involvement of these third parties can vary based on
jurisdiction and the case's specific circumstances. In some legal systems, third parties whose
assets have been seized may not be required to be summoned to provide a statement in court.
However, their testimony can be crucial in determining whether they acted in good faith,
especially if there is a dispute over the legality of the asset seizure. The testimony of third
parties under oath is critical to evaluating their good faith. When an individual testifies under
oath, they are legally and morally obligated to tell the truth. The credibility of their testimony
can significantly influence the court’s decision, particularly regarding the legitimacy of their
ownership of the assets in question and their potential involvement or non-involvement in the
underlying criminal activities.
In this context, the roles of public prosecutors, defence lawyers, and judges become
essential in assessing the veracity and relevance of the statements made by these third parties.
While legal professionals are not typically trained in physiognomy (the assessment of a
person's character or personality from their outer appearance, particularly the face) or gesture
analysis in a formal sense, they do rely on their experience, intuition, and observational skills to
gauge the credibility of witnesses. This includes paying attention to the testimony's
consistency, the witness's demeanour, non-verbal cues, and the overall plausibility of their
statements. It is important to note that while non-verbal cues and behaviour can provide
insights during a trial, they are subjective and can be open to interpretation. Therefore, these
observations are usually considered alongside the factual evidence and the broader context of
the case. The legal system strongly emphasises objective evidence, and while the personal
assessments of prosecutors, lawyers, and judges can inform their understanding of a case, their
decisions must ultimately be grounded in the law and the evidence presented. The testimony of
third parties in trials, especially in cases involving asset confiscation, is vital in establishing
good faith. While legal professionals may use their skills in observing behaviour and non-
verbal cues to assess testimonies, their judgments are primarily based on the case's legal merits,
the evidence presented, and the overall adherence to legal principles and procedures. This is
28
Husein, The Land of Money Launders.
Arief Patramijaya
Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024 [178]
due to, in essence, criminal justice is to examine and decide whether the defendant is guilty or
not guilty of committing a crime,
29
as regulated in Article 183 of the Criminal Procedural Law.
Table 3: Third parties whose Assets are Returned in Corruption and Money Laundering Cases
based on Court Decisions
Court Decisions
Third-parties and
Confiscated Assets
Duration until
Cassation
Decision of the Corruption Court at Central Jakarta
District Court Number 55 / PID.SUS / TPK / 2014 /
PN.JKT.PST dated 24 September 2013 jo. DKI Jakarta
High Court Decision No. 74 / PID / TPK / 2015 / PT. DKI
dated February 4, 2015 jo. Decision of the Supreme Court
of the Republic of Indonesia No. 1261 K / Pid.Sus / 2015
dated 8 June 2015, the name of the Defendant Anas
Urbaningrum.
1 one car belonged to
Martinus; savings belonged to
Nurachmad Rusdam; and land
belonging to Dina Zad
24 September
2013 until 8
June 2015
Decision of the Corruption Court at Bandung District
Court No. 126 / Pid.Sus / TPK / 2014 / PN.Bdg dated 15
April 2015 jo. Bandung High Court Decision Number 17 /
TIPIKOR / 2015 / PT.BDG dated 9 July 2015 jo. Decision
of the Supreme Court of the Republic of Indonesia
Number 2864 K / Pid.Sus / 2015 dated January 13, 2016
on behalf of the Defendants Ade Swara and Nur Latifah.
Among other things: Ali
Hamidi's original check; as
well as a number of
documents belonging to Ida
Farida Sulistianti's business
license and land ownership
15 April 2015
until 13 January
2016
Decision of the Corruption Court at Central Jakarta
District Court No. 12 / PID.SUS / TPK / 2015 /
PN.JKT.PST dated 20 April 2015 jo. Decision Number 26
/ PID / TPK / 2015 / PT.DKI dated 25 August 2015 jo.
Decision of the Supreme Court of the Republic of
Indonesia Number 2707 K / PID.SUS / 2015 dated
February 2, 2016, on behalf of the Defendant Antonius
Bambang Djatmiko.
Cash amounting to Rp.
200,000,000, Rp. 100,000, Rp.
60,000,000 and Rp 50,000,000
and Rp. 350,000,000 and Rp.
525,000,000 confiscated from
H. Ahmad Zaini; and cash Rp.
100,000,000 confiscated from
I Nyoman Ngurah Widiyatna.
20 April 2015
until 2 February
2016
Decision of the Corruption Court at Pekanbaru District
Court Number: 09 / Pid.Sus-TPK / 2015 / PN.Pbr dated 18
June 2015 jo. Decision of the Supreme Court of the
Republic of Indonesia Number 2169 K / PID.SUS / 2015,
dated February 17, 2016, on behalf of the Defendant
Niwen Khairiah binti Imam Muhtadin.
4 plots of land and shop
buildings returned to Unang
Prasetyo Hudianto
18 Juni 2015 s/d
17 Februari
2016
18 June 2015
until 17
February 2016
Decision of the Corruption Court at Makassar Court
Number 22 / Pid.B / 2009 / PN.MKS dated October 6,
2011 jo. Makassar High Court Decision Number 06 /
PID.SUS / KOR / 2013 / PT.MKS dated February 21,
2013 jo. Supreme Court of the Republic of Indonesia
Number 932 K / Pid.Sus / 2014 dated April 13, 2015 on
behalf of 1. Defendants H. Tajang HS and 2. Basri Adbah
alias Basri AD.
1 (one) Suzuki Baleno car was
returned to Usman Dg. Ngalle
06 Oktober
2011 s/d 13
April 2015
6 October 2011
until 13 April
2015
Decision of the Corruption Court at Semarang District
Court No. 75 / Pid.Sus / 2012 / PN.TIP.SMG dated 03
January 2013 jo. Semarang High Court Decision No. 43 /
PID / SUS / 2013 / PT.TPK.SMG dated 4 July 2013 jo.
Decision of the Supreme Court of the Republic of
Indonesia No 1957 K / Pid.Sus / 2014 dated 9 October
2015 on behalf of the Defendant H.M. Syafrudin Huna
M.Si bin H. Umar Naim.
Each cash: Rp. 115,630,000;
in the amount of Rp
111,894,500; amounting to
Rp. 15,000,000, and in the
amount of Rp. 5,000,000 -
returned to the CQ state
treasury of the Pekalongan
Regency Government
03 Januari 2013
s/d tanggal 9
Oktober 2015
3 January 2013
until 9 October
2015
Decision of the Corruption Court at Tais District Court No.
1 (one) Landrover / Hartop car
25 Oktober
29
Ariyati and Suwarjo, Advances in Social Science, Education and Humanities Research, 3rd International
Conference on Learning Innovation and Quality Education.
Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
[179] Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024
29 / Pid.B / 2011 / PN. This dated 25 October 2011 jo.
Bengkulu High Court Decision Number 01 /
PID.TIPIKOR / 2012 / PT.Bkl. dated February 21, 2012
jo. Decision of the Supreme Court of the Republic of
Indonesia Number 2237 K / PID.SUS / 2013, dated April
28, 2014 on behalf of the defendant Lisdiarto bin Sasmito.
and Rp. 13,600,000 at the first
level were decided to be
returned to the Mulya Jaya
Association of Farmers
Groups (Gapoktan).
2011 jo. 28
April 2014
25 October
2011 until 28
April 2014
Decision of the Corruption Court at Central Jakarta
District Court Number 35 / PID.B / TPK / 2012 /
PN.JKT.PST dated 09 November 2012 jo. Jakarta High
Court Decision Number: 02 / PUD / TPK / 2013 / PT.DKI,
dated 28 March 2013 jo. Decision of the Supreme Court of
the Republic of Indonesia No. 1540 K / Pid.Sus / 2013,
dated 09 October 2013 jo. Decision of the Supreme Court
of the Republic of Indonesia Number 14 PK / PID.SUS /
2016 dated December 15, 2016 on behalf of the Defendant
Dhana Widyaatmika.
The land and building
properties were returned to
Dian Anggraeni
09 Nopember
2012 s/d 15
Desember 2016
9 November
until 15
December 2016
Pasir Pangaraian District Court Number: 100 / Pid.B /
2011 / PN.PSP dated February 9, 2012 jo. Pekanbaru High
Court Decision Number: 50 / PID.SUS / 2012 / PTR, dated
25 June 2012 jo. Decision of the Supreme Court of the
Republic of Indonesia No. 2244 K / PID.SUS / 2013, dated
April 7, 2014 on behalf of the Defendant Suhartono Als.
Oto Bin Rifa'i Musa.
Cash amounting to Rp.
200,000,000, - (two hundred
million rupiah); Returned to
the Mesjid Syukur Muara
Rumbai Market
09 Februari
2012 s/d 07
April 2014
9 February 2012
until 7 April
2014
South Jakarta District Court Decision No. 912 / Pid.Sus /
2015 / PN.Jkt.Sel dated 23 December 2015 jo. Jakarta
High Court Decision Number: 17 / PID / 2016 / PT.DKI,
dated February 16, 2016 jo. Decision of the Supreme
Court of the Republic of Indonesia Number 1037 K /
PID.SUS / 2016, dated 27 June 2016 on behalf of the
Defendant Christoper Andreas Lie.
1 (one) unit of Nissan car
returned to Ellya; cash
amounting to Rp.
6,350,211,788, -; Rp.
7,085,100, -; Rp.
1,216,675,130.78 were handed
over to the victims through
Drs. Gunawan Prantoto.
23 December
2015 until 27
June 2016
The decision of the Corruption Court at Central Jakarta
District Court Number: 38 / PID.SUS / TPK / 2013 /
PN.JKT.PST dated December 5, 2013 jo. Jakarta High
Court Decision Number: 14 / PID / TPK / PT.DKI., Dated
April 16, 2014 jo. Decision of the Supreme Court of the
Republic of Indonesia, dated 15 September 2014 on behalf
of the Defendant Luthfi Hasan Ishaaq.
A house under the name of the
defendant, which has been
pledged as collateral at Bank
Muamalat, Kalimas Bekasi
Branch and Bank BCA
Subang Branch, West Java.
5 December
2013 until 15
September 2014
Decision of the Corruption Court at Central Jakarta
District Court Number: 39 / Pid.Sus / TPK / 2013 /
PN.JKT.PST, dated November 4, 2013 jo. Jakarta High
Court No. 10 / PID / TPK / 2014.PT.DKI dated 19 March
2014 jo. Supreme Court of the Republic of Indonesia No.
1148 K / Pid.Sus / 2014, dated 17 September 2014, on
behalf of Ahmad Fathanah.
1 (one) unit of Mercedes-Benz
C200 car purchased in
installments to PT Mitsui
Leasing; and 1 (one) unit of a
Toyota Avanza car and 1 (one)
wedding ring valued at gold
with 7 diamond eyes
belonging to Sefti Sanustika.
4 Novermber
2013 until 17
September 2014
Source: Processed from 13 court decisions in corruption and money laundering cases from 2011 to
2016.
Those two types of plunder were legally different and brought different consequences
towards the third parties. If a third party's confiscated goods were declared as an additional
punishment (verbeudverklaring can Bepaalde Voorwepen) against the defendant, that means
the goods belong to the defendant, wholly or partly obtained from the crime.
The interest and protection of third parties has yet to be regulated comprehensively in the
Criminal Law, both formal and material, that is, a form of special law. Generally, law is
intended to protect people against any violation of their rights, while criminal law was
Arief Patramijaya
Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024 [180]
established to "rob" those rights "in certain circumstances."
30
Bona fide third parties have to
undergo due process of law for a long period until their goods are returned to them through a
court decision.
Through the utilization of the human rights approach,
31
it can be stated that the ideal role
of Investigators, Prosecutors, and Judges is to provide honour, protection, and fulfilment of the
right to bona fide third parties. This can be done if the existing authority of law enforcers is
utilized by conducting examinations against third parties fairly during due process against the
suspect or defendant of corruption and money laundering.
In the verdict of corruption and money laundering cases under the name of Anas
Urbaningrum, it can be stated that the Panel of Cassation Judges has realized substantive justice
and human rights of third parties in good faith. In popular language, substantive justice means
that persons have received what they are "due", meaning that the "truth" has been discovered
and the "correct" result has occurred.
32
In this verdict, the Panel of Judges at the cassation level
decided that the land area of + 7.670 m2 located at Jl. Panjaitan Mantijeron Yogyakarta
confiscated by the Investigator was declared confiscated for the state, but allowing for Yayasan
Al Maksum Pondok Pesantren Krapyak Yogyakarta (as a third-party in good faith) to continue
managing and utilizing the large plot of land in order to maintain social, educational, religious
functions and public interests.
The role of investigators, prosecutors and judges is to realize what is called "substantive
justice", which includes "the correct application of the law and conformity with the relevant
facts."
33
In the realm of criminal law, the roles of investigators, prosecutors, and judges are
intricately linked to the pursuit of what is known as "substantive justice." This form of justice is
centred around the correct application of the law, aligned with the relevant facts of each case.
Investigators are tasked with the initial and crucial role of gathering facts and evidence,
ensuring that their investigation is thorough, unbiased, and adheres to legal standards. The
integrity of their work is fundamental, as it forms the foundation upon which the legal process
is built. Prosecutors then take the baton, assessing the evidence gathered to determine its
sufficiency for legal proceedings. Their responsibility transcends merely securing convictions;
they are the torchbearers of justice, tasked with weighing evidence impartially and upholding
the principles of fairness.
Finally, judges occupy a pivotal position in this triad, interpreting and applying the law to
the cases before them. Their judgments are not merely legal decisions but are reflections of a
balanced consideration of evidence, legal principles, and the broader context of the case.
Substantive justice, therefore, is not about rigidly applying legal rules; it's about ensuring that
these rules lead to morally and ethically equitable outcomes. The synergy of investigators,
prosecutors, and judges in this process is vital, as they collectively ensure that the legal system
functions efficiently and upholds the principles of justice and fairness, which are the bedrock of
the rule of law.
30
Hamzah, Legal Dictionary.
31
UN Doc, “General Comment No. 31 (80),” Human Rights Committee, n.d.
32
Michel Asimow and Shannon Mader, Law and Popular Culture. A Course Book (New York: Peter Lang,
2004).
33
Kempen, Criminal Law and Human Rights.
Criminal Legal Protection for Bona Fide Third Parties Over Assets in Corruption and Money Laundering Cases
[181] Sriwijaya Law Review ◼ Vol. 8 Issue 1, January 2024
CONCLUSION
In criminal law, the assets of third parties in good faith can be defined as the assets of persons
other than the suspects, defendants, and convicted obtained with honour and honesty as well as
are not related to criminal acts and/or the case being investigated, prosecuted and tried. The
protection for third parties in good faith in corruption and money laundering cases is still based
on the "mercy" of the law enforcers. Investigators, prosecutors, and judges play an important
role in achieving legal objectives to realize justice and provide legal protection for third parties,
including protection over their assets obtained in good faith in criminal and money laundering
cases in Indonesia.
Protecting the assets of third parties in good faith is an important legal principle. These
third parties are individuals distinct from the suspects, defendants, or those convicted, who
have acquired their assets honourably and honestly, without any connection to criminal acts or
the case being investigated, prosecuted, or tried. This principle recognizes that not every
individual associated with a person involved in a crime, especially in complex cases like
corruption and money laundering, is necessarily complicit or aware of the criminal activities.
However, the protection afforded to such bona fide third parties can often hinge on the
discretion and judgment of law enforcement officials, including investigators, prosecutors, and
judges. These legal actors play a pivotal role in pursuing justice and legal accountability for
those involved in criminal activities and safeguarding the rights and assets of innocent third
parties. Their decisions and actions determine whether the assets of these third parties are
protected or, conversely, erroneously entangled in the legal proceedings related to the crimes.
In the context of corruption and money laundering cases in Indonesia, this legal protection
is of utmost importance due to the complex nature of these crimes. These cases often involve
intricate financial transactions and networks, making distinguishing between the assets derived
from criminal activities and those acquired legitimately challenging. Therefore, the role of law
enforcers extends beyond the mere application of the law to also interpreting and applying it in
a manner that balances the need for effective legal action against those responsible for the
crimes with the need to protect the rights of innocent third parties. The emphasis on protecting
third parties in good faith underscores the legal system's broader principles of justice and
fairness. It acknowledges that while it is essential to combat corruption and money laundering
vigorously, ensuring that this fight does not unjustly harm those not involved in these criminal
activities is equally important. By providing legal protection for the assets of third parties
obtained in good faith, the law aims to uphold the principles of equity and justice for all
individuals impacted by these investigations and trials.
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