DEVELOPING INTERNATIONAL COOPERATION: A NEED FOR EXPEDITING MUTUAL LEGAL ASSISTANCE

  

JURNAL OPINIO JURIS Vol. 11 No. 01  Mei —Agustus 2012

DEVELOPING INTERNATIONAL COOPERATION: A

NEED FOR EXPEDITING MUTUAL LEGAL ASSISTANCE

  Giri Suprapdiono

  

Abstrak

Dewasa ini, pemberantasan korupsi tidak lagi mengandalkan cara-cara yang

bersifat konvensional melainkan harus dilakukan dengan cara-cara modern,

canggih serta melibatkan kolaborasi antara para aparat penegak hukum dalam

lingkup internasional. Kolaborasi tersebut berupa kerja sama dan kemitraan

internasional yang terbentuk oleh pergeseran paradigm kejahatan korupsi yang

bersifat tradisional ke paradigma yang bersifat modern. Kerja sama internasional

dalam memberantas korupsi dapat dilaksanakan melalui jaringan penegakan

hukum di seluruh dunia. Bantuan hukum internasional dalam menanggulangi

masalah-masalah pidana (bantuan hukum timbale balik, ekstradisi, penyerahan

terpidana, operasi bersama, dan pertukaran data serta informasi) merupakan

bagian dari kerja sama internasional yang berfungsi untuk menjembatani

penyelidikan di dalam negeri dengan penyelidikan di luar negeri. Kegiatan-

kegiatan penyelidikan yang dilakukan meliputi pertukaran informasi, investigasi

bersama, penahanan tersangka, pertukaran bukti-bukti, penyampaian kesaksian,

permohonan bantuan hukum timbal balik, pelacakan dan pengembalian buronan,

penelusuran asset dan repatriasi, ekstradisi, dan lain-lain. Kata Kunci: Korupsi, KerjaSama, Internasional

• “The most effective weapon against crime is cooperation” (J. Edgar Hoover, Director of FBI imprinted at FBI Headquarter's Wall)
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  Modern Corruption

  International cooperation and partnerships are inevitably shaped by shifting international paradigm about corruption from the traditional to modern. First, corruption is a global concern that is why corruption eradication has to be globalized. Globalization provides opportunities for increased international trade and investment, but as well as corruption.

  , corruption is not merely a single jurisdiction issue but a multi-

  Second

  jurisdiction issue. The perpetrators of corruption are aware that overseas jurisdictions are safe haven for them.

  , global anti-corruption spirit has departed from conventional

  Third

  to a more sophisticated and globalized modus operandi. It used to be that corruption was treated as an ordinary and conventional crime, ending only with the trial and conviction of the perpetrators. These days, it is not enough to tackle down the criminals and put them in jail. It is also important to track and recover the assets that are stolen and hidden all over the world. Asset recovery is one paramount effort in the fight against corruption and money laundering. Furthermore, proceeds of corruption and money laundering will create another potential crime in fighting the law enforcement process. The ill-gotten money will be a source for another crime in order to cover crime under investigation or to support obstruction of justice. The weaker and poorer corruptors are, the easier the job of law enforcement becomes.

  Fourth , a transnational corruption requires swift and effective

  transnational law enforcement. The modus operandi often involves countries abroad as loci for transaction, safekeeping of stolen assets, hiding the evidences and sanctuary for fugitives. Today, corrupt officials and the bribers, ill-gotten gains and evidence of the crime may all be in multi-jurisdiction. Therefore, in this modern day and age, there needs to be a better way to address corruption. The fact that international cooperation has developed in recent years, there should not be any safe haven for corruptors to hide in this world. Wherever and whenever they hide, they have to be dealt with international law enforcement networks.

  Thus, fighting corruption today can no longer rely on conventional and traditional means. It must be done by modern, sophisticated means, involving international collaboration between law enforcement agencies

  

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  and authorities from all over the world. These days, corruptors are using more sophisticated technologies, social media and smart intermediaries as gatekeepers of crime. The means of communication shifted from wire telephony to internet protocol based communication such as Skype, Blackberry Messenger, WhatsUp, Facebook, Twitter, Gtalk, emails, etc. Law enforcement must have capacity and competence to use the most advance technologies used by criminals. Otherwise, corruptors will enjoy the comfort zone of 'safe' technology.

  Bridging Informal and Formal approach

  There are two types of legal framework in international cooperation, treaty based and non-treaty based. Treaty based can be divided into multilateral conventions and agreements such as UNCAC (United Nations Conventions against Corruption), OECD Anti-Bribery Convention, AMLAT (ASEAN Mutual Legal Assistance treaty) and bilateral treaties. While non-treaty based use MLA provision in their domestic legislation and letter of rogatory.

  Using multilateral conventions, multilateral and bilateral treaties or agreement negotiation mostly as tools of legal assistance request is time and resource consuming, requires legal formalities that may prolong execution of request sand in some case quite slow and might compromise confidentiality of case or sensitive information. Therefore, dealing multi jurisdiction investigation should use informal approach as complementary. It is a bridging process in dealing with formal approach such as Extradition and MLA. This concept is well noted in international best practices in handling international investigation processes.

  Informal approach can also be used for exchanging information and preliminary evidence for investigation lead, providing non sensitive data such immigration records and open source information, tracing property and non-financial records, getting investigation lead information, locating the man-hunt, and other non-coercive measures. Formal channels is mandatory for getting assistance in using coercive measure from other jurisdiction, such as arresting, repatriating asset, obtaining bank record, getting the evidence for court proceeding, freezing and seizing the assets, etc.

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  The need of formal and informal channels has strong correlation with the level of coerciveness of the request. The more coercive actions will be taken, the need of formal procedure will take place. Most of the international legal assistance falls under coercive measure that requires MLA and Extradition as prerequisite. On the other hand, the more non coercive measure will be taken, the more the uses of informal channels are needed. However, both channels can be delivered at the same time as both of them are complementary in practice.

FORMAL CHANNEL

   Mostly falls under MLA & Extradition arrangements

   Taking Admissible evidence or statements  Serving documents  Executing searches and seizures  Conducting joint

  Investigation  Taking Witness Statement (Compelling witnesses)  Enforcing foreign court orders (seizure, freezing or confiscating of criminal proceeds)  Good for Asset Recovery  Conducting surveillance & intelligence activities

   Locating witness, suspect or fugitive  Trace the proceeds of crime  Providing public, non- sensitive records (Citizen ID, criminals records, Vehicle registry, property registry, company shareholding, immigration records)  Sharing of investigative leads  Other types of assistance in accordance with domestic law  Good for investigation purpose and asset tracing not for prosecution or court proceeding

  

Coercive Measures Non Coercive Measures

Level of Coerciveness and formality

(Modified from Kaeratithanachaiyos, 2012)

  

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  Informal approach strategy and goodwill of requested party are two most important parts in expediting the process of international assistance such as MLA and extradition, while the seriousness of domestic law enforcement process must be in place. Goodwill of requested party creates easier and faster procedure for requesting party, unlike non- cooperative jurisdiction which creates the opposite. Most uncooperative jurisdictions are unwilling to help and hiding their bad commitment in their law procedure. The uncooperative jurisdiction has vested interest in harboring the proceeds of crime on behalf of their national interest. This interest is unacceptable by law enforcement since any systems and persons who protect the crime are criminals as well.

  Therefore, it is important that international community addresses this issue to some reasonable measure and blacklist for uncooperative jurisdictions in international legal assistance regime. UNCAC review mechanism is the best legal framework to address this issue. The review mechanism should govern the issue of multi-jurisdiction relationship in handling corruption and build monitoring measures to ensure the assistance sought by other parties should be handled seriously and properly.

  No Nationality for Criminals

  The role of intelligence cooperation within multilateral networks such as Interpol, ACA (Anti-Corruption Agency) networks such as

  IAACA (International Association of Anti-Corruption Authorities), OECD law enforcement group, Edgmont group, Euro Just, Corruption Hunter Networks, SEA-PAC (South East Asia Parties against Corruption) are crucial and important nowadays. Intelligence cooperation shifted from negative cold war image of undermining other jurisdiction interest to positive image of bilateral relationship in handling and exchanging information in criminal matters, such as anti-money laundering regime, anti-corruption regime and other form of data and information exchange cooperation. Good intelligence cooperation and its networks among the law enforcements around the world could defeat the criminals.

  In some cases, corruptors who are united and have their own networks can only be defeated by law enforcement networks. Criminal

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  has their own syndicates in operating their modus operandi and require support of pertinent power and resources. Networks are the key strategy of winning the war. The best law enforcement agencies in the world puts the cooperation strategy to create good and trusted networks i.e. FBI- USA, SFO-UK, ICAC Hong Kong including KPK in handling corruption cases. Good cooperation will create easy access of information, willingness to help the process, efficiency and effectiveness in getting the result, maintain cooperating witness, and expedite the process. The FBI slogan in their inner headquarter building “The most effective weapon

  against crime is coope ration” gives the strong meaning of cooperation in

  broader sense. The correlation between great success story of FBI in operation and cooperation is strong.

  Success Story

  A couple months ago media coverage and public attention in Indonesia was focused on the arrest of high-profile corruption suspects who fled abroad as fugitives, and the ultimate repatriation of Muhammad Nazaruddin (MN) from Colombia and Nunun Nurbaeti (NN) from Thailand. Printed and electronic media fed public’s appetite with live updates day and night. Yet many were unaware of the hard work behind it that is cultivating international cooperation to ensure the success of such complicated operations.

  The repatriation of KPK fugitives from foreign jurisdictions is not a simple undertaking. The case of MN and NN, for example, involve the cooperation of Anti-Corruption Agency networks, Interpol, Colombian authorities, including other law enforcements, especially the crucial role of investigators and intelligence agents from anti-corruption bodies of Singapore, Malaysia, United States, Laos, Thailand, Vietnam, Hong Kong, China, Cambodia, the Dominican Island, Venezuela, Barbados, Maldives and other jurisdictions. The complexity is that our power and authority are limited in overseas jurisdiction and depend on the authority of our counterparts in overseas jurisdiction. It also require adequate budget and logistics for any urgent matters for example transporting the fugitive using private jets (million US$), data and information cost, hospitality with overseas counterparts, etc. Corruptors pays expensive and

  

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  prominent lawyer in the respective jurisdiction who could delay any process of repatriation by requesting “impunity or asylum request”, extradition appeal, and other legal process. And if the case involve politician, mafia in syndicated corruption, there is another big challenge domestically and overseas due to obstruction of justice that might happen in the process of repatriation.

  The route of Multi Jurisdiction investigation of MN case

  In the case of MN, law enforcement transport the wanted person using private jets over 15 jurisdictions in more than 70 hours in flight (see figure), using informal channels of Interpol, anti-corruption agency networks and strong immigration networks. The method of repatriation use immigration expulsion (not deportation) methods to repatriate the wanted person, rather than formal channels such as extradition. In addition, MLA has been sent ito many jurisdictions in order to secure proper and formal process in the potential jurisdiction such as Cambodia,

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  Malaysia, Singapore, Vietnam, etc. These are just some of the examples of using international cooperation networks in for tracking, locating the trail and arresting the criminals. The extradition channel was not the option in this case since legal formalities of the extradition will prolong execution of requests and the negotiation is time and resource consuming, while public expectation is extremely high in seeking the results of repatriation.

  It is also similar in the NN case, informal and formal channels were concurrently and simultaneously used. KPK has sent some MLA (Mutual legal Assistance

• – in criminal matters) request to several jurisdictions to locate and arrest the fugitive and submitted extradition request to Thailand authority including producing arrest warrant. MLA requests are intended to open investigation in respective jurisdiction by locating, profiling, seeking information including movement records and to secure the process of investigation in overseas jurisdiction. MLA authorizes adequate power for overseas investigator to handle the case in the proper and lawful way. MLA request can be delivered using Central Authority to Central Authority (CA to CA) or Diplomatic Channels. Another formal request in this case is extradition request using diplomatic channels. The extradition request will derive the arrest warrant from the requested parties. Arrest warrant is the coercive measure that falls under extradition.

  Repatriation of fugitives and their proceeds of crimes from abroad are some of the benefits that international cooperation networks can provide. Thus, the best way to investigate corruption and money laundering in multi jurisdiction is by using both formal channels, MLA and extradition, and cultivating informal channels in international networks to expedite the due law process. The informal networks become important in handling syndicated corruption to avoid the possible obstruction of justice that happened in the state that capture corruptors like in Indonesia and other developing countries.

  

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KPK International Cooperation: Strategy to expedite MLA

  

KPK strategy in international cooperation

  International legal Assistance in criminal matters (MLA, extradition, TSP (Transfer of Sentenced Person), joint operation, data and information sharing) is part of KPK's international cooperation that serves as a bridge between domestic and overseas investigation including asset recovery. Activities carried out cover exchange of information, joint investigation, suspect arrest, exchange of evidences, witness delivery, requests for mutual legal assistance, extradition, tracking and return of fugitive, asset tracing and repatriation, and so forth. In practice, international assistance is implemented through both informal and formal approaches as elaborated in the previous part of this article.

  International cooperation against corruption can be conducted throughout law enforcement networks worldwide. As either requesting or requested party, KPK has exercised international assistance with numerous jurisdictions including the United States of America, the

   Mutual Legal Assistance(MLA)  Extradition  Asset Tracing and Recovery  Data and Information Exchange  Joint Investigation  Other international assistance  International Agreement  Multilateral Cooperation  International Forum  Capacity Building  Advocacy  Coalition  Fund Raising & donors management

  KPK International Cooperation

  

International

Relation

International

Legal

  

Assistance

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  United Kingdom, Australia, Colombia, Singapore, Thailand, Malaysia, Brunei Darussalam, Laos, Vietnam, Cambodia, Hong Kong, P.R China, Japan, Germany, Switzerland, Korea, Holland, East Timor, Canada, Spain, Dominica, British Virgin Islands, etc. International network is an indispensable force in combating corruption, because the current modus operandi of corruption is using foreign jurisdictions as safe havens for hideout.

  Until early 2012, KPK has received MLA requests from UK, Japan, Germany, Singapore and Brunei Darussalam. On the other hand, KPK has sent 20 MLA requests as the requesting party to several jurisdictions such as: Singapore (7), Hongkong (2), United States, Thailand, Cambodia, UK, Japan, British Virgin Islands (BVI), P.R. China, Lao PDR, Australia, Malaysia and Vietnam. In practice, KPK works closely with counterparts, makes initial contact and maintain informal networks among the law enforcement agency that authorize in corruption investigation.

  

KPK MLA experiences as requesting and requested party

MoU as bridging tools for further Cooperation

  KPK has signed MoU with dozens of agencies around the world to ensure the bridging process of relationship takes place smoothly. The MoUs are just pieces of papers that are not legally binding and more as an executive agreement between the parties. However, MoUs are beyond

  

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  paper since they create opportunities to meet the partners more frequently, ensuring commitments and filling the legal gaps among the parties in different jurisdictions.

  Up to 2011, the KPK has signed MoUs with international institutions as follows:

1. ACRC (Anti-Corruption and Civil Rights Commission) Republic of

  Korea 2. SNACC (The Supreme National Association for Combating

  Corruption) Yemen 3. ACLEI (Australian Commission for Law Enforcement Integrity)

  Australia 4. DIKR (Department of Interior and Kingdom Relations) Netherlands 5. SPRM/MACC (Malaysia Anti-Corruption Commission) Malaysia* 6. EFCC (Economic and Financial Crimes Commission) Nigeria 7. ACB (Anti-Corruption Bureau) Brunei Darussalam*

  8. CPIB (Corrupt Practices Investigation Bureau) Singapore* 9.

  NACC (National Anti-Corruption Commission) Thailand* 10.

  ACU (Anti-Corruption Unit) Cambodia*

  11. GIA (Government Inspection Authority) Lao PDR * 12.

  GIO (General inspection Organization) Iran 13. UNODC (United Nations of Drugs and Crime),

  14. MOS (Ministry of Supervision) People's Republic of China 15.

  APSC (Australian Public Service Commission) Australia 16. FBI (Federal Bureau of Investigation) USA

  17. AGD (Attorney General Department) Australia 18.

  DOJ (Department of Justice) Netherlands 19. DoFA (Department of Foreign Affairs) Netherlands

  20. GI (Government Inspectorate) Vietnam* 21.

  SFO (Serious Fraud Office) United Kingdom 22. Ombudsman of Philippines* 23.

  INT the World Bank ____________

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• *Signed under SEA-PAC (South East Asia Parties against Corruption)

  arrangement. SEAPAC is a multilateral forum that has nine anti-corruption

  agencies within ASEAN countries.

  The absence of MOU in some case does not become an obstacle in international cooperation. In some jurisdiction, they do not need MoU to cooperate in intelligence cooperation or informal cooperation in handling investigation. However, the presence of MOU will give more opportunity to cooperate since commitments among the agencies are in place.

  KPK use multilateral forum as the forum for 'mingling' as 'the overseas trust building” mechanism. Therefore KPK is active in participation in more than 30 multilateral forums such as: G20 WGAC, OECD WGB, UNCAC, IAACA, APEC ACT, SEA-PAC, ADB-OECD, ACA Forum,

  ICPO-Interpol/ASEANAPOL, APG-FATF,

  IACC, Anti- Corruption Hunter Networks, OIC/OKI Anti-Corruption & Enhancing Integrity, etc.

  Asset Recovery in KPK

  KPK's asset recovery achievements from 2005 until 2011 are shown in the table below:

  

The result of Asset Recovery

  Success factors in achieving asset recovery derived from the establishment of Asset Tracing and Recovery Unit (ATRU) within the organization that has the authority and task to trace assets from the proceeds of crime. Tracing assets starts during the investigation stage. The tracing results give more negotiation position for KPK to obtain more

  

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  asset recovery from convicted person. Usually, the amount of asset tracing should be higher than the state loss as requested by prosecutor. In short, the ATRU is more likely internal FIU who conduct financial investigation to get all information available domestically and overseas.

  Tracing overseas asset is one of KPK strategy to get more asset recovery. Asset tracing in the overseas jurisdiction requires good cooperation of respected authorities in the jurisdiction. KPK could not trace the assets by themselves, since it will jeopardize the bilateral relationship with the agency and violate the Jurisdiction rules. The best way to trace the asset is by giving all information needed by international counterparts in order to be investigated by them. However, during the tracing process it becomes a challenge when some of the jurisdictions are not cooperative and too 'paranoid' to help other jurisdiction.

  Law enforcement relations among the jurisdiction in order to create world free from corruption is a must, beyond the narrow interest of their political, economy or other “vested interest”. Relations in justice should be beyond the political relations. There is no nationality for criminals.

  Therefore, there should not be any jurisdictions that protect them from law enforcement.

  “Among the Anti-Corruption Agency, we are not stranger, but brother and sister in Justice. ” (Writer)

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