VZCZCXRO9884
OO RUEHDT RUEHPB
DE RUEHJA #1899/01 3210459
ZNR UUUUU ZZH
O 170459Z NOV 09
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3845
INFO RUEAWJB/DEPT OF JUSTICE WASHDC PRIORITY
RUCNARF/ASEAN REGIONAL FORUM COLLECTIVE PRIORITY
RHEHNSC/NSC WASHDC PRIORITY
RUEAIIA/CIA WASHDC PRIORITY
RUEATRS/DEPT OF TREASURY WASHDC
RUEHGP/AMEMBASSY SINGAPORE 6645

UNCLAS SECTION 01 OF 02 JAKARTA 001899 
 
SENSITIVE 
SIPDIS 
 
DEPT FOR EAP, EAP/MTS, EAP/RSP, INR/EAP, S/CT FOR MAHANTY, INL FOR 
CARLON/BLOOMQUIST 
DOJ FOR AAG SWARTZ, OPDAT FOR ALEXANDRE/BERMAN/HAKIM 
NCTC 
NSC FOR J.BADER, D.WALTON 
KUALA LUMPUR FOR G.CHAPMAN 
TREASURY FOR IA, TFFC, OIA AND FINCEN 
SINGAPORE FOR S.BLEIWEIS 
 
E.O. 12958: N/A 
TAGS: PGOV PREL PTER KCRM KJUS KTFN SNAR PHUM ASEC ID
 
SUBJECT:  NEW INDONESIAN NCB ASSET FORFEITURE BILL DRAFTED 
 
¶1.  (SBU) SUMMARY:  On November 5 and 6, 2009, a multi-agency 
Indonesian drafting team, working with DOJ's OPDAT, put the 
finishing touches on a non-conviction based (NCB) asset forfeiture 
law.  The draft bill addresses a series of issues ranging from the 
appropriate burden of proof, to the need to protect claimants and 
innocent third parties, to the preservation, management and use of 
seized assets.  While the legislation requires further work, the 
head of PPATK, Indonesia's FIU, stated that the legislation will be 
completed in time to be placed upon the 2009-2010 parliamentary 
agenda.  If passed by parliament, this statute could provide 
Indonesia with an effective remedy to pursue stolen assets in those 
situations where criminal charges are not possible. The draft 
legislation that emerged from the workshop was another tangible 
benefit of INL justice assistance in Indonesia. End Summary. 
 
NON-CONVICTION BASED ASSET FORFEITURE 
------------------------------------- 
¶2. (U) Indonesia possesses statutory authority to forfeit assets in 
certain criminal cases, but lacks a comprehensive, non-conviction 
based (NCB) asset forfeiture statute. Such a statute is a powerful 
tool which permits the recovery of stolen assets and assets used to 
facilitate criminal activities where it is impossible or impractical 
to bring criminal charges against the perpetrator.  These situations 
arise, for example, where a criminal defendant flees or dies before 
trial, where a crime has been committed but there are problems with 
evidence or proof at trial, or where immunity from prosecution or a 
lack of political will precludes criminal prosecution.  NCB asset 
forfeiture has proven to be such a useful tool to recover assets 
stolen through corruption that the United Nations Convention against 
Corruption (UNCAC) urges countries to implement NCB asset forfeiture 
legislation. 
 
¶3. (U) Over the course of the past year, an inter-agency drafting 
team consisting of representatives of Indonesia's FIU (the PPATK), 
the Attorney General's Office, the Ministry of Law and Human Rights, 
the Ministry of Finance, and the Corruption Eradication Commission 
(the KPK) met and worked upon a non-conviction based asset 
forfeiture law, and members of the drafting team visited the United 
States to meet with DOJ experts. In August 2009, the drafting team 
produced an initial draft of the NCB law.  PPATK head, Pak Yunus 
Husein, requested that the Department of Justice review the draft 
law and specifically inquired whether Linda Samuel could come to 
Jakarta to lead a final drafting session before the legislation was 
submitted to parliament. 
 
¶4. (U) AFMLS Deputy Chief Linda Samuel has significant domestic and 
international forfeiture experience.  She is coauthor of "Stolen 
Asset Recovery, A Good Practice Guide for Non-Conviction Based Asset 
Forfeiture", the bible for nations implementing a NCB law.  She has 
also worked closely with the United Nations and World Bank on the 
Stolen Asset Recovery (StAR) initiative which works to develop the 
capacity of nations to use asset forfeiture to recover stolen 
assets.  She has worked with the Government of Indonesia in the past 
on both money laundering and asset forfeiture issues 
 
HUMAN RIGHTS CONCERNS 
--------------------- 
¶5. (U) On November 5 and 6, 2009, the drafting team worked through 
85 paragraphs of draft legislation, sentence by sentence.  Embassy 
RLA, FBI and US Treasury participated in the drafting session. While 
no member of the drafting team was opposed to the legislation per 
se, several expressed qualms about the legality of seizing assets 
from an individual who was not convicted of a crime, even if the 
forfeited assets were patently the proceeds of crime.  One 
interlocutor asserted that civil forfeiture constituted double 
jeopardy, and another worried that a substitute assets provision 
(which permits the seizure of a perpetrator's legitimate assets to 
substitute for dissipated or concealed criminal assets) was unfair. 
 
 
¶6.  (U) Samuel and Embassy RLA addressed each of these points to the 
apparent satisfaction of the drafting team, noting initially that no 
one possesses rights to illegally acquired property, even in the 
absence of a criminal conviction.  The inability of the government 
to prosecute a defendant for reasons beyond its control does not 
mean that the defendant should keep stolen assets.  The lack of a 
 
JAKARTA 00001899  002 OF 002 
 
 
criminal conviction does not impose legitimacy upon otherwise 
illegally acquired property. 
 
¶7. (U) Samuel noted that double jeopardy concerns do not apply to 
NCB asset forfeiture.  Double jeopardy prohibits an individual from 
being twice prosecuted for the same offense.  NCB forfeiture actions 
are brought against the stolen property, not against the person. 
Indeed, the reason why a NCB asset forfeiture case is being pursued 
is because the person has escaped prosecution.  A substitute asset 
forfeiture provision simply substitutes legitimately acquired assets 
for stolen assets which the defendant has dissipated or deliberately 
placed beyond the reach of law enforcement.  The absence of such a 
provision creates a loophole that would destroy the utility of NCB 
asset forfeiture by permitting a perpetrator to use or conceal 
stolen assets while keeping legitimate assets.  Embassy RLA pointed 
out that a number of European Courts, the European Court of Human 
Rights, and Courts in the United States and Canada have all upheld 
NCB legislation against these and other human rights challenges. 
 
¶8. (U) Both Samuel and RLA recognized, nonetheless, that there are 
significant human rights considerations engendered by NCB asset 
forfeiture.  It is critical that claimants of seized property are 
afforded a meaningful and timely opportunity to challenge the 
seizure and forfeiture of property, and the rights of innocent 
owners and third parties needed to be respected.  Both Samuel and 
RLA criticized the draft statute because it fails to clearly 
articulate a list of possible defenses to NCB forfeiture and 
stressed the vital importance of ensuring that claimants have a 
mechanism to easily challenge a seizure. 
 
SEIZED ASSET MANAGEMENT 
----------------------- 
¶9. (U) A transparent, fair and effective system to handle the 
seizure, maintenance and disposal of seized property is critical to 
maintain public acceptance and support of NCB asset forfeiture. To 
assist the drafting team on how to address asset management, Samuel 
recommended a Best Practices Asset Management Guide prepared under 
the auspices of the G-8, which addressed many of the issues under 
consideration by the drafting team.  She also advised that the 
United States had funded asset forfeiture asset management software 
which could be used by Indonesia.  The RLA advised that OPDAT is 
prepared to supply further technical assistance on these issues to 
the Ministry of Finance. 
 
---------- 
ROAD AHEAD 
---------- 
¶10.  (SBU) The conference was useful but a number of issues still 
remain to be addressed and resolved by the drafting team before the 
legislation can be sent to parliament.  Of particular concern is 
whether the drafting team will remove or reduce the minimum 
statutory amount for asset forfeiture, and what burden of proof will 
govern cases brought under the new statute.  It will be especially 
critical to ensure that neutral and transparent procedures are in 
place before assets are seized and forfeited lest the NCB statute be 
viewed as a tool of a corrupt government. 
 
HUME