The Urgency Of Implementing Non-Conviction Based Asset Forfeiture As A Mechanism For Asset Confiscation In Corruption Criminal Acts In Indonesia

Abstract

This research analyzes the urgency of implementing non-conviction based asset forfeiture as a mechanism for asset recovery in corruption offenses in Indonesia. Corruption constitutes an extraordinary crime with systemic impacts on economic stability and public welfare, thus necessitating an effective and equitable mechanism for the recovery of state losses. In practice, Indonesia's asset forfeiture regime remains predominantly grounded in the conviction-based forfeiture paradigm, which requires a final and binding court judgment (inkracht van gewijsde) as a prerequisite for confidence. This requirement frequently generates obstacles in optimizing asset recovery, particularly where the offender has died, is absent, cannot be located, or where the criminal evidentiary process encounters substantial impediments. This study aims to reconstruct the regulatory framework asset governing forfeiture in corruption cases in Indonesia, identify its existing deficiencies, and formulate an ideal future regulatory model for asset recovery in addressing corruption offenses. Employing a normative legal research method and a statutory approach, this study examines relevant legislation, as well as the theories of legal certainty and legal effectiveness. The findings indicate that the current mechanism for confiscating assets derived from corruption in Indonesia continues to face normative and operational constraints, primarily because the national regulatory framework requires a final and binding court judgment (inkracht van gewijsde) as the legal basis for forfeiture. Regulatory reconstruction is therefore necessary to adopt a non-conviction based asset forfeiture (NCBAsset Forfeiture) mechanism employing an in rem approach, which offers an alternative paradigm by positioning the asset itself as the principal object of legal proceedings, thereby enabling forfeiture without dependence upon the criminal conviction of the offender. This approach also accommodates a reversal of the burden of proof and minimizes legal loopholes that might otherwise be exploited to evade accountability.