ASSET RECOVERY AND HUMAN RIGHTS: ASSESSING INDONESIA’S READINESS FOR NON-CONVICTION BASED ASSET FORFEITURE

Abstract

Indonesia’s asset recovery framework remains heavily dependent on conviction-based asset forfeiture (CBAF), a model that has proven structurally inadequate in addressing complex, transnational, and economically motivated crimes. In practice, criminal proceedings often stall when offenders abscond, die, or exploit procedural loopholes, leaving illicit assets beyond the State’s reach despite formal convictions or protracted trials. At the same time, limitations in Mutual Legal Assistance (MLA), fragmented regulations, weak inter-agency coordination, and a scarcity of expertise in forensic accounting and financial investigation further undermine the effectiveness of asset tracing, freezing, and confiscation, particularly in cross‑border cases. This article argues that a juridical reconstruction of Indonesia’s asset forfeiture regime, through the adoption of a Non‑Conviction Based Asset Forfeiture (NCBAF) mechanism, is an imperative rather than an option, provided that it remains constitutionally legitimate and consistent with the United Nations Convention against Corruption (UNCAC). Drawing on normative legal research, the study analyzes existing legislation, international instruments, and comparative practice to design an NCBAF model grounded in four pillars: recognition of NCBAF as an in rem proceeding applying a balance‑of‑probabilities standard of proof; a clearly defined scope of forfeitable assets encompassing proceeds of crime, instrumentalities, and substitute assets; robust constitutional safeguards, including judicial oversight and third‑party protection; and institutional integration through the establishment of a National Asset Data Integration Center (PIDAN) under the coordination of PPATK as Indonesia’s financial intelligence unit. The article also examines oversight mechanisms, administrative objections, judicial challenges, and calibrated evidentiary burdens intended to prevent abuse of authority while securing effective asset recovery. It concludes that a principled and progressive NCBAF framework, grounded in non-retroactivity while permitting prospective application to unresolved assets, can strengthen Indonesia’s compliance with international standards, enhance cross-border asset recovery, and promote restorative economic justice, while upholding the rule of law, legal certainty, and the protection of fundamental human rights.