PRACTICAL ISSUES IN ASSET RECOVERY

Transcription

1 PRACTICAL ISSUES IN ASSET RECOVERY Workshop on New Strategic Directions in Controlling Corruption: The Recovery of Stolen Assets Bangkok, March 2008 Yusfidli Adhyaksana The Attorney General s Office of Indonesia 1

2 Issues Presented Methods to recover stolen assets; Indonesian Experiences in Asset Recovery; Problems encountered ; Lessons Learnt; Conclusion. 2

3 Methods to Recover Stolen Assets Mutual legal assistance in criminal matters; Civil litigation; Mediation; (Notes: sensitive to public and vulnerable for political champaign by oppositions) 3

4 Mutual Legal Assistance in Criminal Matters Treaty based and non treaty based; Double criminality is usually flexible; The Domestic legal frameworks of the Requested Country will play a significant role in the proccess and the decision; In some countries, a final judgment has to be the basis to grant a confiscation order and to return the stolen assets. 4

5 Types of Assistance 1 Taking of evidence or obtaining voluntary statements from persons; Making arrangements for person to give evidence or to assist in criminal matters; Effecting service of judicial documents; Executing searches and seizures; Examining objects and sites; Providing original or certified copies of relevant documents, records and items of evidence; 5

6 Types of Assistance 2 Identifying or tracing property derived from the commission of an offence and instrumentalities of crime; The restraining of dealings in property or the freezing of property derived from the commission of an offence that may be recovered, forfeited or confiscated; The recovery, forfeiture or confiscation of property derived from the commission of an offence; Locating and identifying witnesses and suspects; and Other assistance, consistent with MLAT and Laws of Requested Party; 6

7 Civil Litigation No arrangements needed except a contract with private attorneys; Budget allocation is pivotal; A solid internal team, multi expertise approach, should accompany the works; Domestic proceedings sometimes needed but not always; 7

8 Mediation Where other legal remedies are difficult and almost impossible; The accused person or his/her lawyer offers to pay back up to the amount of the damage, with no criminal proceeding or civil suit in return; Economically beneficial, but politically controversial, because oppositions and business competitors will use media to shape public opinions; 8

9 Experiences in Asset Recovery (Non MLA Approach) In Singapore, millions of US $ recovered in Pertamina Kartika Taher case, through civil litigation; By virtue of Proceeds of crimes Act of Australia: Hendra Rahardja Case. Succesfull in recovering more than A $ (triggered by MLA request by Indonesia); In Guernsey, the Government is doing an intervention in civil litigation of Euro $36 m. The Republic of Indonesia was invited by the Court of Guernsey to apply an intervention. (The decision making process demonstrated the importance of political will). 9

10 Experiences in Asset Recovery (MLA Approach) In Switzerland, based on reciprocity, millions of US $ of assets are now being blocked; In Hongkong hundreds of thousands of US$ being confiscated, with the Australian Government assistance. Few MLA requests has been initiated to some coutries, in efforts to recover the proceeds of corruptions and to seek for compensation. 10

11 Problems Encountered Matching double criminality; People in charge do not really understand the differences in legal system and practice (both in Requested and Requesting Countries); Lack of Preparation of documents : A Dossier, conviction, transaction records and other documents, have created problems in compatibilaty with the requirements of the Requested Country; Weakness in Capacity and Compentency of people involved. 11

12 Lessons Learnt Strong political will and a dedicated, professional and skillful team is needed to support the efforts; A precise assesment before try to recover stolen assets is crucial to guarantee the best results. (Cost and benefits or other principles); Since problems sometimes occured from the different criminalisation, law makers needs to be advised for future amendments or modifications (in particular: double criminality principle); Bilateral consultations on caseworks and face to face meeting are more effective than distant communications. Although informal contact through or telephone is a must; Multi agencies approach, including FIU and Interpol networks, is best; 12

13 Coordination and Cooperation In Collecting Information 1 NCB-Interpol 2 F I U Police 4 Land Registration and Others 3 Immigration 13

14 Conclusion The succeed of our efforts depends on our preparation and the legal frameworks of the reuqested country; All available resources should be used in : identifying, tracing, freezing, seizing and confiscating/forfeiting; Networks, acquaintance and informal communication will help; Empowering the role of government lawyers in both Requesting and Requested Countries will strengthen the efforts; 14

15 Thank You 15