Recovering Proceeds of Corruption Through Non-Conviction-Based Asset Forfeiture

A Procedural Model for Indonesia’s Attorney General’s Office

Abstract

Indonesia’s asset-recovery regime remains fragmented and predominantly dependent on criminal conviction, even though corruption proceeds may be transferred, concealed, dissipated, or held by third parties before a final judgment is obtained. This study examines how non-conviction-based asset forfeiture (NCBAF) can be incorporated into Indonesia’s legal system without weakening due-process guarantees. It applies normative legal research using statutory, conceptual, and comparative approaches. Primary materials include the United Nations Convention against Corruption (UNCAC), Indonesian anti-corruption and prosecutorial legislation, the Swiss Criminal Code and Foreign Illicit Assets Act, and Part 5 of the United Kingdom’s Proceeds of Crime Act 2002. The analysis shows that the United Kingdom provides a distinct civil-recovery route based on property obtained through unlawful conduct and adjudicated on the balance of probabilities, while Switzerland combines criminal-law confiscation provisions, value-based claims, presumptions concerning criminal organisations, and a special regime for illicit assets of foreign politically exposed persons. Indonesia already recognises limited civil actions, reversal of the evidential burden, confiscation, and prosecutorial asset-recovery powers, but these mechanisms do not yet constitute an integrated and autonomous NCBAF procedure. The article proposes a court-supervised procedural model led by the Attorney General’s Office through the Asset Recovery Centre. The model comprises statutory triggering conditions, financial investigation, provisional freezing, an in-rem-oriented application, an initial evidentiary threshold borne by the prosecutor, a proportionate shift of the evidential burden, protection for bona fide third parties, reasoned judgments and appellate review, professional asset management, and transparent return of recovered assets. This model reconciles effective recovery of corruption proceeds with legality, proportionality, judicial control, the right to be heard, and protection of property.