Confiscation of Corrupted Assets by Means of in Rem Approach against Illicit Enrichment

Abstract

The dynamics of corruption crime is closely related to the economic development of any State. In those developing countries – including Indonesia – corruption practices have become so massive and offensive, whereas on the other side the efforts to recover those stolen assets by means of criminalizing corruption is not easily carried out. Those corruptors have extraordinary access that are so difficult to detect, both in their actions to hide those stolen assets and in performing money laundering of their corruption crime. The eradication of corruption crime is not solely depends on the penalization of those actors, but on how such State loss can be recovered maximally. Accordingly, corruption eradication must be conducted by means of extraordinary measures and by relying on extraordinary legal instruments. One out of those instruments is special regulation, which enable the confiscation of assets owned by public officials that belong to illicit enrichment. Legal instruments to be applied surely related to the legal politic of the State, namely the model of corruption eradication and recovery of State finance. The model that is applied at the present focuses more on in rem approach which lays stress on the confiscation of corrupted gains. Such model is known as Non-Conviction Base (NCB) Asset Forfeiture or Civil Forfeiture. It applies against the cases of illicit enrichment. The UNCAC 2003 allowed the confiscation of stolen assets in case a public official unable to explain the source of his or her assets increase in relation to his or her lawful income. The Indonesian legal system regarding enforcement against corruption crime still be based on the in persona concept. Meanwhile, serving the interest to recover the State financial loss due to corruption crime, a paradigm shift is required, namely the in rem approach. Such approach enable the control of illicit enrichment by means of the Report on Public Officials Assets (LMKPB) and the application of assets tracing principle.

Keywords: Assets confiscation, In rem, illicit enrichment