Asset Confiscation Research Articles

Penafsiran Ayat-Ayat tentang Perampasan Aset Koruptor dalam Perspektif Al-Misbah, Al-Azhar, Ibnu Katsir, dan Al-Munir

This study discusses the interpretation of verses of the Qur'an related to the illegal taking of other people's property, especially in the context of the confiscation of corruptor assets, based on the views of Muhammad Quraish Shihab (Tafsir Al-Misbah), Hamka (Tafsir Al-Azhar), Ibn Kathir (Tafsir al-Qur'an al-'Azhim), and Wahbah Zuhaili (Tafsir al-Munir). This study uses a qualitative method with a library research approach to conceptually examine various things that are correlated with corruption from the perspective of the Qur'an. Therefore, this study is a type of qualitative and thematic research through literature review, namely by writing, reducing, and presenting data and analyzing it, as well as the theory of maqashid sharia and jinayah. The results of the study show that the commentators support the confiscation of corruptors' assets as a legitimate action in Islam, by the principles of maqashid al-syariah, especially the protection of property (hifz al-mal). Quraish Shihab emphasizes the importance of asset confiscation to restore justice and protect society. Hamka sees this action as a just punishment that also restores the rights of society. Ibn Kathir emphasizes that corruption must be punished strictly to prevent greater damage. Wahbah Zuhaili emphasizes the authority of the government in upholding justice and preventing injustice, including through the confiscation of illegal assets. This interpretation provides a strong theological basis for the policy of asset confiscation as part of the enforcement of Islamic law, emphasizing that such action is necessary to maintain balance and stability in society.

Improving asset confiscation: in the quest for effective and just solutions

The quest for effectiveness in criminal law results in creating non-punitive sanctions based on evidentiary facilities and lowered standard of proof. European courts, while focusing on procedural safeguards, perceive the structure of criminal sanctions as an element of national penal policy and leave it to the national authorities. The latter may, however, be ready to sacrifice certain important aspects of criminal law, like judicial discretion or individual guarantees, for the sake of unspecified ‘effectiveness of legal regulations’. In case of asset confiscation such approach can result in forfeiture of significant quantities of property without the certainty that it actually comes from a crime. Therefore, it seems necessary to identify the framework of criminal law principles applicable to non-punitive sanctions, in order to receive – while interpreting legal provisions – an effect that is not only a (presumably) effective, but also a just solution. This paper contributes to this issue with particular emphasis on extended form(s) of asset confiscation.

Problems of the Formulation of Asset Forfeiture Resulting from Corruption Crimes: A Comparative and Conceptual Study

Corruption in Indonesia has long been a severe transnational issue requiring appropriate handling. Although Law No. 31 of 1999 and Law No. 20 of 2001 on the Eradication of Corruption have provided a legal basis for combating corruption, weaknesses remain in their implementation. This study aims to evaluate the effectiveness of these laws by employing a legislative approach and analyzing the opinions of scholars. The primary focus of this research is on asset confiscation resulting from corruption, as regulated by the Anti-Corruption Law, which serves as a key instrument in combating corruption. The findings indicate that unclear legal norms and weak coordination among law enforcement agencies still hinder the implementation of asset confiscation. The conclusion of this study emphasizes the need for regulatory improvements and enhanced coordination among institutions to maximize the effectiveness of asset confiscation in efforts to eradicate corruption in Indonesia

Problems of the Formulation of Asset Forfeiture Resulting from Corruption Crimes: A Comparative and Conceptual Study

Corruption in Indonesia has long been a severe transnational issue requiring appropriate handling. Although Law No. 31 of 1999 and Law No. 20 of 2001 on the Eradication of Corruption have provided a legal basis for combating corruption, weaknesses remain in their implementation. This study aims to evaluate the effectiveness of these laws by employing a legislative approach and analyzing the opinions of scholars. The primary focus of this research is on asset confiscation resulting from corruption, as regulated by the Anti-Corruption Law, which serves as a key instrument in combating corruption. The findings indicate that unclear legal norms and weak coordination among law enforcement agencies still hinder the implementation of asset confiscation. The conclusion of this study emphasizes the need for regulatory improvements and enhanced coordination among institutions to maximize the effectiveness of asset confiscation in efforts to eradicate corruption in Indonesia

Evaluation of tax debt management for bankrupt taxpayers in Indonesia

Purpose: This study aims to evaluate tax debt management for taxpayers who are bankrupt in Indonesia, based on successful tax debt management. Method: This study is a literature review that compiles and synthesizes data from Indonesian Tax Collection Law with Distress Warrant Law, General Tax Provisions and Procedures Law, Bankruptcy and Postponement of Debt Payment Obligations Law, Minister of Finance Regulation. This study also integrates previous research to evaluate tax debt management for bankrupt taxpayers in Indonesia, based on successful tax debt management. Results: Persuasive communication with bankrupt taxpayers is deemed nonessential in the context of tax debt management within bankruptcy proceedings. Standardized procedures were in place within the Directorate General of Taxes prior to resorting to law enforcement measures for debt collection from bankrupt taxpayers. These measures encompass a spectrum of enforcement tactics, including asset confiscation, imposition of travel restrictions (exit bans), and detainment in extreme circumstances. The Directorate General of Taxes assesses various criteria to determine the viability of collecting debt from bankrupt taxpayers, considering factors such as economic feasibility and practicality. Limitations: This study did not conduct a comparative analysis of tax debt management for bankrupt taxpayers in Indonesia and similar practices in other countries. Such a comparison would elucidate how different jurisdictions address tax debt management for bankrupt taxpayers, and could offer valuable insights for overcoming collection challenges specific to Indonesia. By examining common practices in other countries, this study provides recommendations tailored to the Indonesian context to improve the effectiveness of tax debt collection from bankrupt taxpayers. Contribution: This study enriches the literature on how the Directorate General of Taxes manages bankrupt taxpayers to pay their debts.

Application of NCB Asset Confiscation in Handling Corruption Crimes in Indonesia

Applying NCB (non-convection based not on treasury), commonly called asset confiscation punishment without punishment, is an innovative solution for appropriating corruption when a person cannot cope with criminal, civil and administrative penalties. The problem that exists all ready for change, of course, requires regulation in this regard. It is very important to look at these regulations and how a convection-based asset recovery policy is a government loss recovery policy related to state loss crimes such as corruption, money laundering, etc. Therefore, the subjects considered in this study are how NCB Asset Forfeiture is applied in dealing with criminal acts of corruption in Indonesia. This research method seeks normative law by examining secondary and qualitative data. It is from this that the first conclusion can be drawn: the urgency of implementing the NCB policy (Non-Convection based on not Forteiture) in Indonesia, namely the existence of obesity problems from state losses with massive corruption crimes that have occurred and efforts to harmonise and legitimise the NCB Draft Asset confiscation bill to overcome state losses. Second, the legal response in applying the concept of NCB (Non-Convection Based Forfeiture), namely cooperation with other countries in exploiting evil assets.

Establishment Of The Asset Confiscation Law To Minimize Corruption In Indonesia

This research is qualitative research with a descriptive approach, namely describing a number of things that are closely related to confiscation of assets in criminal law, criminal acts of corruption, and other things. The data used in this research is secondary data in the form of the Criminal Code, Civil Code, statutory regulations, the official website of the House of Representatives, other credible websites, and so on. The researchers analyzed the data using grammatical and systematic legal analysis techniques, namely interpreting every word in the legislation and connecting it with other secondary data or other related legislation. The result in this article show there are three major urgencies for the presence of the Law on Asset Confiscation in Indonesia, namely to provide instruments that are stricter than the current regulations because in the Criminal Code, asset confiscation is only an additional crime and not the main crime, providing a deterrent effect for corruptors and potential corruptors, and of course minimizing corruption cases in Indonesia. Under existing legal structures, state losses resulting from criminal acts of corruption cannot be recovered. Recovering state losses takes years and may not even be returned at all. What is meant to provide a deterrent effect in this research is to impoverish corruptors, change the nomenclature of words whose nature is emphasized from facultative to imperative, and change its status not only to become an additional crime, but also to become a principal crime. On this basis, researchers are of the opinion that the presence of asset confiscation laws in Indonesia can be effective in minimizing the occurrence of corruption in Indonesia.

Menakar Urgensi Kriminalisasi Kepemilikan Harta Tidak Wajar melalui Kebijakan Legislasi dalam Upaya Pemberantasan Tindak Pidana Korupsi di Indonesia

Ownership of inappropriate assets by public officials or named illicit enrichment is still a hot issue. Indonesia itself has a wealth reporting instrument for public officials called the State Officials’ Wealth Report (LHKPN) as a means of controlling and supervising the wealth of public officials. In practice, many public officials have unappropriate assets and are suspected to have been obtained illegally, but these assets cannot be taken by the state because they have not been or have been proven to be the proceeds of criminal act. Thus, this research aims to examine the potential for resolving this problem by criminalizing the ownership of improper assets by public officials, which aims to minimize the incidence of state financial losses. Based on the results of the research, it shows that there are at least two alternative ways, namely (a) making the illegal ownership of public officials whose legality is not proven to be one of the criminal offenses of corruption through the revision of the Corruption Law; or (b) formulate and ratify provisions related to illicit enrichment in the Asset Confiscation Bill. The criminalization of illicit enrichment is a form of implementation of the provisions of Article 20 of the United Nations Convention Against Corruption (UNCAC) as ratified by Indonesia with Law Number 7 of 2006 with the aim of preventing corrupt actions by public officials. This research uses a normative research method with a regulatory-legislative approach and a conceptual approach, the results of which are presented in prescriptive form.

Confiscation of Assets as ‘Uqūbah Mālīyah in the Shāfi‘ī Madhhab

Asset confiscation is currently a hot topic of discussion in the international space. Many countries are trying to make new rules regarding asset confiscation, such as Indonesia and the Netherlands. This initiative cannot be separated from the United Nations Against Corruption (UNCAC) international convention, which requires all state parties to make their positive law. Islamic law also recognizes the confiscation of assets, especially in the Shāfi‘ī school of thought, which is known to be strict in its determination. Therefore, the main question in this research is how Islamic law, especially the Shāfi‘ī school of thought, views this phenomenon as a law in Islam. This research is normative legal research that focuses on analyzing and interpreting Islamic legal norms to explain the phenome-non of asset confiscation. The results of this study indicate that asset confiscation has begun to be used as the primary punishment in criminal and civil forfeiture models. The Shāfi‘ī school stipulates asset confiscation as ‘uqūbah mālīyah, which can be applied both in violation of God’s rights and human’s rights.

The Importance of Non-Conviction Based (NCB) Regulations For Asset Confiscation in Illegal Investment

The purpose of this research is to find out the importance of Non-Conviction Based (NCB) asset confiscation management in illegal investment cases in Indonesia. NCB is a method of confiscating assets that allows the state to confiscation assets without a court order on past criminal convictions. This article argues that controlling the NCB is important to ensure the effectiveness of asset recovery in illegal investment cases and to prevent law enforcement officials from abusing their powers. This research uses a qualitative approach and examines relevant laws and regulations, court decisions and academic writings along with a brief description of the situation in the European Union. The findings in this study indicate that the existing laws and regulations in Indonesia for implementing NCB are inadequate. Hence, asset expropriation in illegal investment cases cannot be carried out without a court order on past criminal decisions. This study recommends making a law on asset confiscation for illegal investment cases that can provide clear criteria and procedures in civil procedural law for the use of the NCB mechanism similar to those exist in a number of EU Member States.

The Jurisdiction of the Prosecutor's Office is to Confiscate Assets and Eradicate the Crime of Money Laundering

Simply put, money laundering is the criminal act of transforming the proceeds of crimes, or what is known as "dirty money," such as money obtained through smuggling, gambling, tax evasion, drug sales, or corruption, into a form that seems safe and legal for use. Both a conceptual and legislative approach are used in this normative research. Legal approach by examining Law Number 20 of 2001 concerning Amendments to Law Number 31 of 1999 concerning Eradication of Corruption Crimes and Law Number 8 of 2010 concerning Eradication of Money Laundering Crimes. The practice of seizing property used in illicit conduct with the goal of returning it is known as asset confiscation. The meaning of the term confiscation is connected to confiscation which is commonly used in the asset confiscation system for the purpose of returning asset recovery as used in UNCAC 2003

FAILURE OF CRIMINAL LAW IN RECOVERING STATE LOSSES DUE TO CRIMINAL ACTS OF CORRUPTION

Effectiveness Returning state financial losses due to criminal acts of corruption is still far from expectations. In 2022, the number of decisions observed by ICW will increase fundamentally, namely 2,056 decisions with 2,249 defendants. In 2022, the average perpetrator of corruption will be imprisoned for 3 years and 4 months, which will cost the state Rp. 48,786,368,945,194.70 (Rp. 48,786 trillion). This article aims to describe the form of failure of Indonesian criminal law in efforts to return state assets and analyse the causes and consequences resulting from the failure of criminal law in efforts to return state assets. This research is based on qualitative research by conducting legislative studies and literature studies. The research results show that the form of failure to recover state financial losses is characterized by the increasing value of unrecovered state losses from year to year. This is a result of the legal vacuum that can be applied in efforts to recover state financial losses because the applicable legal formulation is no longer relevant or cannot reach the scope for confiscation of corruptors' assets so that judges have limitations in making sentences regarding the return of state losses. This has the impact of hampering equitable economic development and hindering foreign investors because the rulers and conglomerates use land to benefit certain groups. This research concludes that the formulation of criminal law cannot accommodate legal needs regarding the recovery of state financial losses due to corruption, so it is recommended to immediately pass the Asset Confiscation Bill.

Sales levels and asset confiscation penalty among commerce sector taxpayers in Peru

Objective: Determine the relationship between the sales level and the asset confiscation penalty for taxpayers in the commerce sector in Peru during the period 2013-2020. Methods: The approach was quantitative, relational, with a non-experimental design, and an applied nature. An investigation was conducted through the documentary analysis of reports obtained from National Superintendency of Customs and Tax Administration. The relationship between the sales level declared by taxpayers and the levels of asset confiscation penalties imposed during the period 2013-2020 was evaluated using the Spearman’s Rho correlation coefficient. Results: There is a significant inverse relationship between the sales levels declared by taxpayers and the asset confiscation penalty for not having payment receipts in the interventions carried out by the Tax Administration. Conclusion: In the short term, lower sales levels are associated with a higher probability of committing the offense of not carrying the payment receipt that supports the ownership and/or possession of the goods transported by the taxpayer. This is explained by a weak tax culture and a lack of awareness of the obligation to contribute to the tax authorities.

Legal Basis of Sanctions against Russia and Asset Confiscation

"This study provides an in-depth examination of the legal bases for current asset freezes in the European Union (EU) and the United States (US), and how these differ from confiscations of Russian state assets. It explores the evolving political deliberations that have led to new goals of making reparations to Ukraine, which has suffered extensive damage estimated at more than 600 billion euros as a result of Russia’s invasion. The primary focus of this study is on the potential confiscation of frozen state assets of Russia as a means to achieve reparations. Western governments have initiated comprehensive assessments of avenues to perform permanent asset seizures, with the overarching goal of strengthening the tracing, identification, freezing and management of assets as preliminary steps for potential confiscation. The study discusses the legislative pitfalls associated with sovereign asset confiscation, its challenges and limitations. It highlights how the principle of sovereign equality of states can hinder such actions, protecting the assets of Russia’s central bank from court proceedings and execution in another state. Despite Russia’s actions contravening the fundamental norms of international law, interpretations of customary international law maintain Russia’s immunity from legal proceedings in foreign courts. Therefore, it can be concluded that there are no legal bases for the expropriation of Russian sovereign assets. Keywords: confiscation of assets, Russian assets, reparations, legal considerations, International law, sanctions, sovereign equality."

Adapting confiscation and anti-money laundering laws to the digital economy: exploring the Australian interplay between proceeds and technology

PurposeThe rise of cryptocurrencies and other digital assets has triggered concerns about regulation and security. Governments and regulatory bodies are challenged to create frameworks that protect consumers, combat money laundering and address risks linked to digital assets. Conventional approaches to confiscation and anti-money laundering are deemed insufficient in this evolving landscape. The absence of a central authority and the use of encryption hinder the identification of asset owners and the tracking of illicit activities. Moreover, the international and cross-border nature of digital assets complicates matters, demanding global coordination. The purpose of this study is to highlight that the effective combat of money laundering, legislative action, innovative investigative techniques and public–private partnerships are crucial.Design/methodology/approachThe focal point of this paper is Australia’s approach to law enforcement in the realm of digital assets. It underscores the pivotal role of robust confiscation mechanisms in disrupting criminal networks operating through digital means. The paper firmly asserts that staying ahead of the curve and maintaining an agile stance is paramount. Criminals are quick to embrace emerging technologies, necessitating proactive measures from policymakers and law enforcement agencies.FindingsIt is argued that an agile and comprehensive approach is vital in countering money laundering, as criminals adapt to new technologies. Policymakers and law enforcement agencies must remain proactively ahead of these developments to efficiently identify, trace and seize digital assets involved in illicit activities, thereby safeguarding the integrity of the global financial system.Originality/valueThis paper provides a distinctive perspective by examining Australia’s legal anti-money laundering and counterterrorism financing framework, along with its law enforcement strategies within the realm of the digital asset landscape. While there is a plethora of literature on both asset confiscation and digital assets, there is a noticeable absence of exploration into their interplay, especially within the Australian context.

The Juridical Analysis of the Urgency of Ratifying the Draft Law on Asset Forfeiture in Indonesia

<p><em>This research has the purpose of providing a juridical analysis of the urgency of ratifying the asset confiscation law in Indonesia. This article emphasizes normative juridical research with a case study approach, statutory approach, as well as empirical approach to understand the asset confiscation draft law as norms that apply to society. The type of data analyzed in this article are mainly secondary data from the Indonesian law, books, news, previous research, and journals related to money crime and asset confiscation draft law. Previous research found that </em><em>Indonesia’s corruption Perception Index reached its lowest point of 34 out of 100 last year, indicating that corruption and money crime continue to occur even after a multitude of efforts to combat corrupt practices. Hence, the Indonesian law system requires an extraordinary effort to cope with this extraordinary crime, specifically through the asset confiscation law. Several indicators discovered from this research reveal the urgency of this law. The asset confiscation law would be a solution to the problems of economic crimes in Indonesia through its function as a social control to achieve legal objectives, namely justice.</em></p>

Confiscation of assets in the EU – legal or (just) effective?

The European Union is empowered to legislate in criminal matters; the European Parliament and the Council may establish minimum rules, in certain areas, concerning the definitions of criminal offences and sanctions or facilitating cross-border cooperation. However, in the field of asset confiscation, the EU authorities seem to go beyond these competences in their legislative activity. In this paper the author refers to this and other problems of EU legislation in criminal matters: covering up the insufficient competence to legislate with the argument of needing harmonisation, the lack of reliable data that would justify EU legislative activity and the problematic concept of effectiveness in EU legislation.

A Rule of Law Analysis: Botswana’s Non-Conviction-Based Confiscation and Forfeiture Regime Under the Proceeds and Instruments of Crime Act, 2014

Abstract On its inception, the non-conviction-based asset confiscation and forfeiture regime attracted both praise and criticism. Using the Rule of Law as an analytic framework, this paper evaluates the non-conviction-based asset confiscation and forfeiture regime under Botswana’s Proceeds and Instruments of Crime Act, 2014. The paper finds that whilst the regime has withstood constitutional attacks, it still retains some shortcomings. For instance, there is lack of clarity on the standards of proof, procedures and inadequate protection of third-party rights. The paper recommends reforms.

Juridical Analysis of Corruption Crime Asset Confistion As an Effort to Return State Losses Using Non Penal Approach in Indonesia

In its development, corruption in Indonesia has increased from year to year, both in terms of the quality or amount of state financial losses and the quality of how it is carried out in a sophisticated and systematic manner, and has even penetrated across national borders. Therefore, handling corruption, especially in order to maximize the recovery of state losses, requires a comprehensive approach, as well as through international cooperation. This research found the fact that the asset confiscation mechanism using a non-penal approach is more effective and efficient. This argument is based on the fact that because there is no need to confirm the crime of corruption as long as the perpetrator's assets are suspected to be illegal assets of corruption, this shortens the time. Confiscation of property or assets using non-penal means is more efficient when compared to confiscation of property or assets through civil means in accordance with the provisions of the Corruption Eradication Law (PTPK) which is legal in Indonesia. Because if in a criminal case using civil law it is the same as placing the burden on the prosecutor to carry out proof, then it actually increases the number of things that might happen, namely reconvention lawsuits against the prosecutor as the plaintiff. The asset confiscation mechanism using a non-penal approach no longer focuses on chasing perpetrators but rather following the movement of money so that the number of corruption in Indonesia is expected to decrease.

Implementation of Follow the Money in Eradicating Corruption and Money Laundering

This study aims to identify and analyze the implementation of follow the money in eradicating corruption and money laundering in order to recover state financial losses. This research is normative research, this research was carried out by examining library materials in the form of primary, secondary, and tertiary legal materials, with an empirical-analytical approach, which uses concrete cases to become research objects, and uses relevant theories. The follow the money policy in eradicating corruption and money laundering in Indonesia has not been effective enough in returning assets that have been confiscated and has resulted in losses to state finances. Therefore, it is necessary to strengthen the system for returning assets resulting from acts of corruption with the Asset Recovery Bill, increasing FINTRAC capacity, strengthening asset confiscation, and cooperation between countries to track assets resulting from crimes abroad and maximize returns through Mutual Legal Assistance. The future policy direction is to strengthen the system for recovering assets and confiscating assets through conviction-based forfeiture and non-conviction-based forfeiture, as well as civil lawsuits. In the Indonesian legal system, the follow the money policy is very important to overcome corruption and money laundering. However, the return on assets is still not optimal. Therefore, the Bill on Asset Recovery and the Bill on Cash Payments as well as the application of Articles 18 and 37 of the Corruption Law are needed to confiscate the proceeds of crime through criminal compensation