COMPARISON OF THE APPROACH TO THE USE OF INDIRECT EVIDENCE METHODS IN THE INVESTIGATION OF ILLEGAL ENRICHMENT IN. Meanwhile, the United Nations Convention against Corruption (UNCAC) provides a non-mandatory provision for signatory states to consider criminalizing the illicit enrichment of public officials.3 There have been varying responses from signatories. In line with these alternative approaches, Indonesia does not criminalize the illicit enrichment of government officials.
Signatory countries that do not want to criminalize illicit enrichment, such as Indonesia and the United States, use the illicit enrichment of public officials as a tool to investigate the corruption offense itself.
INDONESIAN CRIMINAL JUSTICE SYSTEM IN INVESTI- GATING ILLICIT ENRICHMENT
See Indonesia Corruption Watch - Yayasan Lembaga Bantuan Hukum Indonesia- PUKAT UGM, Implementasi dan Pentingang Illicit Enrichment (Peningkatan Kekayaan Tidak Sah) di Indonesia [Implementing and Regulating Illicit Enrichment in Indonesia] 26 (published November 2013). 76 KPK held several discussions on illicit enrichment in addition to working on a research assignment with ICW. The purpose of this description is to identify what constitutes an element of the crime of corruption and how the investigation of illicit enrichment is useful in proving the element of corruption and how to use information from financial disclosure and the tax system to investigate illicit enrichment. .
79 Perlunya Pengaturan Kekayaan Gelap untuk Mencegah Korupsi [Urgensi Pengaturan Kekayaan Gelap untuk Memerangi Korupsi], LAW ONLINE (1 November 2013).
INDONESIAN FINANCIAL DISCLOSURE SYSTEM
For example, in general, courts have held that in tax evasion, the government must prove: (i) “the existence of a tax deficiency; (ii) an affirmative act that constitutes tax evasion or attempted tax evasion; and (iii) willfulness.”171 Importantly, the government has the burden of proving each element of tax evasion beyond a reasonable doubt.172. The tax evasion subchapter stated that the government has the burden of proof to convict a defendant; in fact, direct evidence often could not be found because it was destroyed or concealed by the suspect. Although courts have held that the asset value method is constitutional to use in criminal cases, some general questions remain: whether this method requires corroborating evidence derived from direct evidence methods; whether the government has presented sufficient evidence;
United States, where the Court held that the charges were sufficient to establish the case and resist the motion to arrest the defendant for tax evasion.201 In Capone, the defendant brought the case to court, arguing that Counts 13 and 18 (misdemeanor) are not directly and positively related to other tax evasion matters;202therefore, the government cannot use the direct evidence of counts 13 and 18. 205In that case, the defendant argued that the government failed to establish a taxable net income because it had lacked accurate sources of the defendant's income.206The court found that the government has presented sufficient evidence to indict the defendant for tax evasion,207 reasoned that the defendant in this case was not charged with "deviation of official form;"208 thus the finding would not be different even if the defendant could provide more precise information.209. Third, the Netherlands court explained how courts must validate government expert witnesses by citing United States v.
Regarding the sufficiency of evidence in the Netherlands, the court held that it is true that a defendant has the right to defend himself or herself in a tax evasion prosecution; shows that the defendants in Holland had a proper accounting system, including books and records, but the government had the power to prove beyond theirs. In addition, the court determined that the government presented sufficient evidence to establish the defendants' initial net worth214, in which the government reviewed their sources of income and their expenses.215 On the question of the validity of instructions from the government's expert witnesses and the jury, the Court emphasized that the instruction was not misleading, because it reflected “the concept beyond a reasonable doubt to the jury.”216 All of the above reasons led the Court to hold that the verdict must stand, even though the government may not disprove all of the nontaxable. income, all the government's evidence is persuasive. 215 The government had submitted to the jury that the defendants had used small bills at the time.
Like the net worth method, the bank deposit method requires the government to determine taxable income. In addition, the defendant argued that the government failed to “identify the cash on hand.”249 In using the cash method, the court noted that there should be an estimate of the cash on hand at the beginning of the first year; in that case, the court found that the government conducted a sufficient investigation to find the cash in the till. In summary, the Hogan court provided a better explanation of what the government must determine when using the case method and what the relationship between the cash method and the expense method is.
In this case, the use of the cash method is indeed appropriate because the suspect had very limited sources of income.254 Furthermore, as with other circumstantial methods of evidence, although in this case the government expert testified, the jury.
WHY INDONESIA HAS TO CONSIDER TO REFORM ITS SYSTEM IN DEALING WITH ILLICIT ENRICHMENT
This investigation can lead to underlying crimes, prosecutors can use joinder statements in further prosecution. Indeed, several Indonesian researchers have conducted research projects focused on looking at countries that prefer or tend to criminalize illicit enrichment, such as Australia and China. To that point, this section is devoted to analyzing why Indonesia should consider looking to the US.
The following subsection outlines what improvements can be proposed and what potential barriers may be encountered.
RATIONALES AND RECOMMENDATIONS TO REFORM IN- DONESIAN ILLICIT ENRICHMENT INVESTIGATION
Both countries oblige senior public officials from the three branches of government: executive, legislative and judicial to submit a report on their financial condition, which includes a report on assets, income and liabilities, before, during and after their term of office. In general, the purpose of the financial disclosure system is to prevent conflicts of interest and illicit enrichment.270 Regarding illicit enrichment, experts have concluded that “increasing the effectiveness of the [financial disclosure] system as a tool to prosecute corruption or to prosecute corruption or to detect and recover stolen property is consequence of the [purpose] of the financial disclosure system.”271. 273 At that time, there were not enough laws and an independent legal apparatus for their prosecution. 274 Based on this experience, Indonesia established a financial disclosure system under the Clean Country Law, and the KPK under the Anti-Corruption Law and the KPK Law.
Indonesia inserted financial disclosure into the anti-corruption regime under the Clean-State Act - and it got stronger with the establishment. Interestingly, the US has established a financial disclosure system under the ethics law, but it provides civil and criminal prosecution for public officials who fail or misrepresent with imprisonment and fines. According to the UNODC, preferences for providing civil and criminal prosecution depend on the objectives of the financial disclosure system.
If the system is created to investigate illicit enrichment, then governments can focus on monitoring the assets of public officials with the goal of detecting "the concealment or theft of assets" and providing "administrative and criminal sanctions, including heavy fines."279 In contrast, if the goal is to prevent a conflict of interest that will lead to ethical misconduct, then the sanction is unnecessary.280 When we look at the intention of the Indonesian government to include financial disclosure in the Clean Country Law and supported by the Anti-Corruption Law, it should be clear that the the financial disclosure system would be an active tool for detecting corrupt criminal acts; therefore, it will be necessary to ensure civil and criminal prosecution with administrative, prison and monetary sanctions. In addition, there should be a method to investigate illicit enrichment evident from the financial disclosure statement that may lead to corruption offences. Looking at the resources Indonesia already has, these indirect methods of proof could be incorporated into the financial disclosure system under the KPK and tax evasion prosecution under the Civilian Tax Investigator.
These institutions can work together to investigate illicit enrichment and the KPK can prosecute civil or criminal financial disclosure violations together with joint corruption offences. To implement these ideas, there should be an amendment of the KPK Act and the Anti-Corruption Law by adding a separate chapter on ill-gotten gains, which includes the enforcement mechanism for failure to file or provide information. false financial disclosure, merger of financial charges. detection and tax evasion with corruption.
POSSIBLE CHALLENGES AND OVERCOME STRATEGIES IN REfORMING INDONESIAN ILLICIT ENRICHMENT INVES-
CONCLUSION
Background, ORGANIZATION OF AMERICAN STATES, SECRETARIAT OF LEGAL AFFAIRS, DIVISION OF LEGAL COOPERATION, http://www.oas. 2013), available at http://www.transparency.org/whatwedo/pub/exporting_corruption_progress_report_2013_assessing_enforcement_of_the_oecd. PUSDIKLAT KEJAKSAAN REPUBLIC OF INDONESIA, PENELURUSAN ASET [AS-SET TRACING], available at http://www.kejaksaan.go.id/pusdiklat/uplimg/file/.
Zaki Al Hamzah, SBY: Perhatikan Korupsi Perpajakan [SBY: Awasi Korupsi dalam Sistem Perpajakan], REPUBLIKA ONLINE (ROL) (Desember http://www.republika. Tentang sistem pembuktian merugikan [Tentang memilah beban pembuktian ], HUKU- MONLINE (MARET http://www. Hukumonline.com/klinik/detail/lt- 513ff99d6eedf/tangan-sistem-pembalikan- jasa-pemcepatan. Pemberantasan korupsi harus imparsial], ANTARANEWS (Maret http:/ / www.antaranews .com/news/423682/legislator-pemberantasan-korupsi-jangan-pilih-pilih.
Adyan Mohamad, Kementerian Keuangan Sanksi 83 Pegawai karena Transaksi Mencurigakan [Kementerian Keuangan Sanksi 83 Pejabat Terkait Transaksi Mencurigakan], MERDEKA.COM (Nov. http://www.merdeka. Adnan Buyung Nasution, Reformasi Konstitusi di Indonesia [Reformasi Konstitusi di Indonesia], HUKUM ONLINE, http://www.hukumonline.com/berita/baca/.wealth-report.html.
Herry Susanto, Membangun Kesadaran dan Kepedulian Sukarela pada Wajib Pajak [Meningkatkan Kesadaran Wajib Pajak], PAJAK (Jan http://www.pajak.go.id/. Martha Thertina, PPATK Ajukan RUU Perampasan Aset Koruptor [PPATK Usul RUU Pemulihan Aset] , Tempo.CO (16 April 2013) http://www.tempo.co/read/.