There are many 'red-notes' for recovering the assets against financing-crime in Indonesia. The Asset Confiscation Bill represents a significant step forward by incorporating Non-Conviction-Based Asset Forfeiture. NCB-AF is a powerful tool in the fight against illicit activities, allowing the seizure of assets tied to criminal actions, even without a conviction. As we move forward, it is imperative to ensure that safeguards are in place to prevent any unintended infringements on human rights, preserving the principles of justice and fairness.

1. Legal Brief
Overview of Asset Confiscation Bill

2. Discussion over the needs of asset confiscation regulation has been conducted since 2006 and been delayed, because:
(i) the polemic of the compliance due to human rights protection; and (ii) other legal-political needs are more prioritized.
Asset confiscation remains one of the biggest loopholes in anti-corruption policies as only a very small share of the
proceeds of corruption is confiscated from criminals and returned to its victims. With the goal of overcoming some of the
barriers to asset recovery, non-conviction-based asset forfeiture (NCB-AF) has emerged as an alternative
confiscation tool, endorsed by the UNCAC, the FATF, the OECD, the EU and many others. It has been implemented in
several countries in the developed and developing worlds, with varying levels of success.
In the other hand, a case emerge to public as a pull trigger, a tax official named
Rafael Alun became public spotlight after his son often showed off his wealth
on social media. Therefore, it was found that Rafael Alun belongs in the category
of high-risk employee based on the discrepancy between his assets, reported
assets, and suspicious transactions.
Abovementioned incidents has reignited the urgent
need of asset confiscation regulation in connection
with the attempt to eradicate financial-crime.
After being rejected several times by the Indonesia House of Representatives (“DPR
RI”), the Indonesia Government resubmitted the Bill to the DPR.
Historical Case as Red Note in Implementation of Asset Recovery
Djoko Soegiarto Tjandra Case
02
Proved Guilty based on Putusan Pengadilan Tinggi DKI
Jkt No. 71/PID/2003/PT.DKI dated 2 June 2003 and
resulted in a state loss of Rp1.500.000.000.000,-.
However, the execution of the return of assets was
delayed for a very long time because the convict filed an
objection at the Australian Court and was decided to
handover Andrian to Indonesia in 2014.
Andrian Kiki Ariawan Case
01
Proved Guilty based on Putusan Mahkamah Agung RI No.
12PK/Pid.Sus/2009 dated 11 June 2009 and resulted in a
state loss of Rp904.642.428.369,-. Squeaky-clean, Djoko
has previosly applied for citizenship to Papua New Guinea
and resulted Djoko guaranted for immunity by the
Papua New Guinea Government.
Proved Guilty based on Putusan Pengadilan Tinggi DKI Jkt No.
125/Pid/2002/PT.DKI dated 8 November 2002 and resulted in a state
loss of Rp2.659.308.000.000,-. By a moment Hendra found guilty,
Hendra fled to China and the Chinese government granted immunity to
Hendra for political-ethnic reasons. although in the end, Hendra was
declared dead in 2004 in Australia, the worst news, assets that can be
recovered is only about 4 billion rupiah.
Hendra Rahardja Case
03
Hesham Al-Warrag Case
04
Proved Guilty based on Pengadilan Negeri Jakarta Pusat
No. 339/Pid.B/2010/Pn.Jkt.Pst dated 30 November 2010
and resulted in a state loss of Rp3.115.889.000.000,-. But
bravely, Hesham instead filed a claim to ICSID against the
Indonesian Government for being deemed to have
expropriated his shares in Bank Century. Thus, the asset
recovery conducted in 2014.
The Trigger and Marathon of Asset Confiscation Bill
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3. General Concepts
The Basis of imposition Asset Confiscation.
Purpose Issuance
The urgency of the Bill.
Asset Categories
Broadening the meaning of Assets.
Basis Considerations of Enforcement
Implementation NCB-AF based on the Bill.
Legal Procedure
Special Procedural Law on Asset Confiscation.
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Scope of Asset Confiscation Bill

4. Purpose of the Issuance of Asset
Confiscation Bill
Criminal Asset
Confiscation
Imposition on
Criminal Sanction
Procedure of Law Open to Mutual
Legal Agreement
Asset Confiscation, is a
concept within the condition
court has stated to
confiscate the assets that
coming from criminal act
without being referred on
punishment of the
perpetrators.
Asset Confiscation does not
waive the prosecutor’s
authority to charge a
perpetrator of criminal acts.
Trial procedure of asset
confiscation is in accordance
with civil court procedure.
Indonesia Government may
seek international
cooperation with other
countries to trace, block,
confiscate, and seize assets.
Article 1 (3) Asset Confiscation Bill.
Article 2 (1) Asset Confiscation Bill.
Article 34 Asset Confiscation Bill.
Article 63 Asset Confiscation Bill.
1
2
3
4
The current applicable law to regulate
the systems and mechanisms
regarding Asset Confiscation related to
criminal acts have not fully effective
and efficient in enforcing the law.
Economic purpose as a base of criminal
acts has damaged the national
economy. Thus, the Indonesian
Government fronts obstacles in realizing
national prosperity.
Through confiscation the assets
originating from criminal act, focusing
on rebalancing the economy.
Asset Confiscation may deprive the crime
rate, resulting in increase in investors’
interest in conducting business activities
in Indonesia.
General Concept
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5. 1. Art. 2 (g), UNCAC.
2. FATF Recommendation 2022.
3. Guilherme France, “Non-Conviction-Based confiscation as an alternative tool asset recovery: Lessons and Concerns from the
Developing World”, Transparency International, (2022), pg. 10-11.
4. Cornell Law School, “Burden of Proof”, (2017).
5. Bright Line Law, “The use of non-conviction based seizure and confiscation”, (2020), pg. 16.
6. Bingham Centre for the Rule of Law. “Can Non-Conviction based (NCB) asset forfeiture be compliant with the Rule of Law?”,
(2019), pg. 1.
7. Mat Tromme, “Waging war against corruption in developing countries: how asset recovery can be compliant with the Rule of
Law”, Duke Journal of Comparative & International Law, v. 29. (2019), pg. 187.
8. Ibid.
Reference
Proving guilt beyond a reasonable doubt is a much higher standard. It requires the prosecution to convince the
decision-maker (the judge or a jury) that there is no other reasonable explanation, besides the defendant's guilt, that
can be derived from the evidence presented at trial. No other logical explanation can be inferred or deduced
from the evidence. In other words, all the defendant has to prove in order to be found innocent is that there is
another explanation for the facts presented, even if it is highly improbable. 4
NCB-AF implementation can be directed at assets owned by people in positions of power within criminal
organisations. Prosecutors often struggle to connect specific criminal acts to individuals who are at the top of
the chain of command and do not participate themselves. In these cases, NCB forfeiture can be used against their
properties if and when they have the hallmarks of ill-gotten gains. 5
Criticism around NCB asset forfeiture focuses on the lifting of constitutional protections for defendants,
weaker procedural safeguards and the potential for it to encroach on human and property rights. 6
Civil forfeiture has been considered an "arbitrary interference with property rights”, because it is enforced
against whoever holds or owns the affected property. It has the potential to impact innocent third parties
when the property from which they benefit is seized without compensation or replacement, a risk that grows
considerably as laws begin to include both proceeds and instrumentalities of crimes. 7
Some of NCB-AF' negative effects on defendants are rather similar to the ones caused by criminal prosecution.
In addition to the financial loss, in case of conviction, there is the stigma of being associated with a crime, which
happens even for people who have not been convicted in either civil or criminal proceedings. The lower
evidentiary threshold for NCB forfeiture may encourage prosecutors to initiate proceedings even when they do
not have sufficient proof of guilt, increasing the risks of reckless prosecutions. 8
When confiscation depends on a criminal conviction, prosecutors face a higher evidentiary threshold. Proving that
someone is guilty of a criminal offence is intentionally difficult because of the grave consequences of a criminal
conviction, notably the restrictions on an individual's liberty and rights. 3
PROS
PROS
PROS
CONS
Non-Conviction Based
Asset Forfeiture (NCB-AF)
United Nations Convention against Corruption (UNCAC) defines NCB-AF
as the “permanent deprivation of property by order of a court or
other competent authority”, thus NCB-AF only one of the ways through
which confiscation could implement.¹
The Financial Action Taskforce (FATF) defines NCB-AF as a "means of
confiscation through judicial procedures related to a criminal
offence of which a criminal conviction is not required.” 2
Those criticism and issues are particularly prominent in the
developing world, especially where weak institutions and rule of
law deficits allow abuses to happen.
Noteworthiness
The Ground Rules of Asset Confiscation Enforcement
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6. The current applicable law having the meaning of assets is still scatter and exclusively defined in each law and regulation. By the meaning
of assets in relation to criminal acts, is also not significantly regulated therefore there are often practical dispute that illegally harm the third
party’ assets. In a way to answer such issues, the Asset Confiscation Bill has broaden the elaboration of ‘asset’ itself.
Asset as All Movable or Immovable Objects,
whether Tangible or Intangible, and Have
Economic Value
Movable and Immovable Assets: includes various types of
properties, such as land, buildings, motor vehicles, jewelry, and
cash. These assets must be able to be valued in terms of money
Any related-rights considered as Assets: related-right that could be
valued in terms of money, such as: insurance claims and shares,
within also intellectual property rights, such as: copyright, patents,
and trademarks.
Asset that (Presumed) May Confiscated
1
2
3
Assets obtained from criminal acts directly or indirectly,
including those that have been donated or converted into personal
wealth, owned by others or corporations, in the form of capital,
income, or other economic benefits obtained from such wealth.
Assets known or suspected to have been used or have been
used in committing a criminal act;
Other assets legally owned by the offender as a substitute for
assets that have been seized by the state; or
Discovered assets that are known or suspected to be
derived from criminal acts.
4
Imposition of Asset Confiscation
Suspect or defendant passed
away, fleeing, or its
whereabouts is unknown;
1
Defendant is found acquitted
according to court decision;
2
Criminal case cannot be adjudicated
(causality);
3
It is found the guilty defendant’s asset
has not been imposed to be
confiscated.
4
Additional notes:
Art. 192 (2) Law No. 8/1981
Acquittal Decision is rendered when the proven
allegation is not constituted as a criminal act.
Elucidation:
1. Logs resulting from illegal logging found by
investigators but the whereabouts of the owners
or perpetrators of the crime are unknown.
2. Results of online gambling whose owners are
unknown.
The imposition of asset confiscation is regulated in Article 7 Bill.
Broadening the Meaning of ‘Asset’
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7. The Bill has specifically regulated the procedural law regarding the confiscation of assets by adapting the NCB-AF.
Asset
Tracing
Asset tracing conducted by Investigator, contains officers
of Indonesia National Police, Indonesia National
Prosecutor, Corruption Eradication Commission, Nation
Narcotics Agency, and well-trained civil servant.
Investigators may cooperate with institutions that carry out
financial transaction analysis, such PPATK, BPK, BPKP.
01
Notes
Blocking/Freezing
the Asset
In the condition that results of the Tracing it is suspected that the
relevant Asset is an Asset related to a crime, the Investigator has the
authority to block and/or Confiscate.
02
Notes
Compiles within the Law
The investigator issues a blocking/confiscation warrant to authorized
institution and the subject that own the suspected asset.
Such blocking/confiscation warrant has determined by the
investigator's direct supervisor and after obtaining permission from the
competent District Court.
Investigator may block such suspected asset no later than 60 days.
01
02 Coordination with the Relevant Authorities
In the event that the suspected assets to be confiscated are abroad, a
request for Blocking or Confiscation shall be submitted to the
competent authority in that country.
In addition, investigator obliged to handover the suspected asset to
the Prosecutor General.
Injured Third party
Any third party that having opinion their rights has injured, has the
right to object that that the Assets that are blocked and/or confiscated
are legally owned or are not Assets of a Criminal Act.
Objections are submitted in writing to the Investigator's direct
supervisor who issues the Blocking and/or Confiscation order, within
a maximum period of 14 days from the date of the Blocking and/or
Confiscation.
03
Obligation to Handover any Documents
Any relevant subject, as: individual; government agency;
or other related institution; obligated by law to handover
the requested document to Investigator as long as it
compiles within: minutes of confiscation that’ll be signed
by Investigator, relevant subject, and 2 witnesses.
As a note, handovering document above waive any Non-
Disclosure Agreemeent
01
Waive of Charges
The relevant subject has provided documents to
investigators in good faith, free from all criminal, civil and
state administration charges.
02
Termination the On-going Transaction
For the purposes of Tracing, the institution that
conducted financial transaction analysis has the authority
to temporarily terminate such transaction no later than 20
days.
03
Document
Filling
Document filing conducted by investigator no later than
7 days after asset freezing/seizure occurred. Prosecutor
conducted document filing based on application
submitted by the state institution that carried out the
confiscation. Investigator/prosecutor hands over the
result of document filing to the State Attorney. State
Attorney examines the document filing no later than 7
days.
03
Application to Declare of
Asset Confiscation
State Attorney submits application of asset confiscation to the district
court no later than 14 days after the filing document is declared
completed. If the asset location is abroad, the Centre Jakarta District
Court has the sole competence to adjudicate the confiscation
application of the said asset. Third party may file objection to the
district court that adjudicate the asset confiscation application.
04
Procedure of Asset Confiscation 1/2
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8. Court Hearing
The Registrar, by order of the Head of District Court,
submits a summons to the State Attorney's Prosecutor
submitting an application to appear on the day of court
hearing. In addition, the Registrar may summon people
who own or control the assets and/or have known
objections
05
Notes
Evidence
Legal evidence according to the Bill consists of:
06
Written Letter
01
Court hearing conducted accordingly to the civil
procedural law.
Prosecutor compile the arguments that form the basis of
the said application and proving that the assets
requested for confiscation are assets related to criminal
act.
Contrary side, judge gives the opportunity to convey his
arguments in filing an objection and/or resistance and
proving that the blocked and/or confiscated assets are
legally owned or the assets requested for confiscation
are not related to criminal act.
01
The court hearing is held open to public.
Even though it is carried out in civil procedural law, the
court hearing is open to the public from examination
sessions to decision sessions as a form of compliance
with the public domain
02
Cassation may file toward the district court’s
decision to the supreme court.
03
Asset
Management
Asset management is carried out by the Prosecutor
General based on professional principles, legal
certainty, transparency, efficiency and accountability.
07
Notes
Prosecutor General’ Authority
▪ Asset storing;
▪ Asset securing;
▪ Asset maintenance;
▪ Asset valuation;
Document
02
Witness Testimony
03
Expert Testimony
04
Electronic Document
05
Written Statement (Affidavit)
06
Other Evidence Revealed during Court Hearing
07
01
▪ Asset transfer;
▪ Asset utilization; and
▪ Asset return.
Valuation of Confiscated Asset
Value assessment of criminal act assets is carried out by
the Prosecutor General when the assets are received or
when the assets are handed over to the State Attorney
General. In conducting an assessment of said assets.
Prosecutor general may cooperate with the ministries
that administer government affairs in the financial sector,
whose reports are then given to Investigators and the
Prosecutor General.
02
Execution of Confiscated Asset
Prosecutor General may transfer asset before the court
decision is final and binding if requested by the
investigator. Such transfer may conducted by auction
through the state auction office.
In the event that the criminal act assets are not sold after
the auction, the criminal act assets are declared as state
property.
If court decision rejects the application of asset
confiscation after the has been transferred, the valuation
of asset return should equal to the transferred asset.
03
Procedure of Asset Confiscation 2/2
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9. Overview of the Asset Confiscation Provision
in Various Countries
A H R P L e g a l B r i e f
• Civil-Judicial Forfeiture
• Regulation: 18 U.S. Code Art. 981, 983, 984,
and 985, and 21 U.S. Code Art. 881
• Mechanism applied: Court proceedings
against property derived from or used to
commit a crime. Unlike criminal forfeiture,
there is no criminal conviction required,
although government is still required to prove
in court that the property was linked to
criminal activity.
United States
• Non-Conviction-Based Confiscation
• In 2021, the Dutch Government introduced the
Draft Bill on the Criminal Justice Approach to
Subversive Crime II containing new instruments
to confiscate money and property originating
from criminal activity without first having to
• obtain a criminal conviction.
Netherland
• Civil Recovery Proceedings
• Regulation: Proceeds of Crime Act 2002
• Mechanism applied: A forfeiture under civil
proceedings whereby brought by the National
Crime Agency and require a prior criminal
conviction.
England
• Non-Conviction Based Forfeiture
• Regulation: Decree of Necessity and Urgency No. 62/2019.
• Mechanism applied: the said decree stipulated asset
confiscation conducted in specialised office in Prosecutor-
General’ Office and presenting in civil-procedure to the
federal court. However, the Decree enacted by the Law by
sweeping changes that NCB forfeiture was brought into
criminal proceedings and afforded defendants the right to
damages in case they were found innocent of criminal
charges after confiscation.
Argentina
• Non-Conviction-Based Confiscation
• Regulation: Ley Organica de Extincion de Dominio 2021
• Mechanism: the said law states that NCB forfeiture is an
autonomous proceeding that targets assets and not individuals.
Article 5 sets up four requirements for confiscation: (i) the
existence of an asset of illicit origin or use; (ii) the existence of
criminal activity; (iii) a causal link between the asset and the
criminal activity; and (iv) the knowledge that the owner had or
should have had about the illicit origin or unjustified use of that
asset.
Ecuador

10. 01
02
According to Art. 56 (1) Bill, General Attorney may transfer asset before the final
and binding court decision issued. Furthermore, Art. 59 (2) Bill regulates if court
decision declares asset should be returned, while the said asset has been
transferred, hence the said return should conduct with equal value to the
transferred asset. An issue may occur if any party refuse the said return
because the returned asset is not its actual asset which has been confiscated.
According to Art. 15 (1) Bill, investigator may conduct asset freezing/seizure
prior to court hearings. Issue may arise if court decision declares to reject the
application of asset confiscation, while damage may occur as a result of the
said asset freezing/seizure. Therefore, the asset confiscation bill should include
restoration measures thereof.
Potential Legal Issue that May Arises on
Implementation of Asset Confiscation
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11. We will continue to follow the developments on this topic and provide additional information as it becomes
available. If you have any questions on this topic, please contact:
M. Sakti Tambunan
sakti@ahrplaw.com
Putra Pengayoman
putra@ahrplaw.com
Radithya Hawari
radithya@ahrplaw.com
This publication has been prepared by AHRP for educational and informational purposes only. The information contained in this publication is not
intended and should not be construed as legal advice. Due to the rapidly changing nature of law, AHRP makes no warranty or guarantee concerning
the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your
circumstances before deciding to take any action.
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