JOSR: Journal of Social Research
November 2022, 1 (12), 689-697
p-ISSN: 2827-9832 e-ISSN: 2828-335x
Available online at http:// https://ijsr.internationaljournallabs.com/index.php/ijsr
http://ijsr.internationaljournallabs.com/index.php/ijsr
Juridical Review of Money Laundering Crimes committed by the President
Director of PT. Asabri
Sareng Purnomo, Bernat Panjaitan, Nimrot Siahaan
Faculty of Law, Labuhanbatu University
mailto:sarengpurnomo76@gmail.com bernat.pjt@gmail.com, nimrotsiahaan4@gmail.com
Abstract (Indonesia)
Received:
Revised :
Accepted:
November 20,
2022
November 22,
2022
November 24,
2022
Latar Belakang: Negara hukum adalah negara yang
menjunjung tinggi penegakan hukum dan keadilan, yang
merupakan persyaratan mutlak untuk mencapai tujuan
nasional. Tujuan nasional adalah mewujudkan sistem
kehidupan bangsa, negara dan masyarakat yang adil dan
makmur sesuai dengan nilai-nilai yang terkandung di
dalamnya.
Tujuan: Penelitian ini bertujuan untuk mengetahui dan
menganalisis tentang tinjauan yuridis tindak pidana
pencucian uang serta mengetahui dan menganalisis tentang
pertanggungjawaban dalam kasus tindak pidana pencucian
uang yang dilakukan oleh direktur utama PT ASABRI.
Metode: Penelitian ini termasuk dalam jenis penelitian
normatif. Sehingga dapat diketahui bahwa Dan unsur-unsur
bukan tindak pidana pencucian uang adalah pelaku,
perbuatan (transaksi keuangan atau keuangan) dengan
maksud menyembunyikan atau menyamarkan asal kekayaan
dari bentuknya yang haram (ilegal) seolah-olah itu adalah
harta yang sah (legal).
Hasil: Pencucian Uang sebagai kejahatan memiliki
karakteristik bahwa kejahatan ini bukanlah kejahatan tunggal
tetapi kejahatan ganda. Intinya adalah tindak pidana
pencucian uang adalah bentuk tindak pidana yang dilakukan
baik oleh seseorang dan/atau korporasi dengan sengaja
menempatkan, mentransfer, membelanjakan, membayar
terjun, mempercayakan, membawa ke luar negeri, mengubah
bentuk, menukar dengan mata uang atau surat berharga atau
perbuatan harta benda lain yang diketahuinya atau patut
dicurigai adalah hasil dari proses non-pidana.
Kesimpulan: Berdasarkan penjelasan di atas, dapat
disimpulkan bahwa proses pencucian uang memiliki tiga
tahap, yaitu Tahap Penempatan atau penempatan, yang
kedua adalah Tahap Layering atau Pemisahan, dan yang
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Juridical Review of Money Laundering Crimes committed by the President Director of
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terakhir adalah Tahap Integrasi atau penggunaan kekayaan
yang telah tampak sah.
Kata Kunci: Tindak Pidana, Pencucian Uang, Asabri.
Abstract (English)
Background: This study aims to find out and analyze about
the juridical review of money laundering crimes and find
out and analyze about liability in cases of money laundering
crimes committed by the president director of PT. ASABRI.
Objective: This study aims to find out and analyze the
juridical review of money laundering crimes and find out
and analyze about liability in cases of money laundering
crimes committed by the president director of PT. ASABRI.
Methods: This research belongs to the normative type of
research. So that it can be known that Dan the elements of
not criminal money laundering are perpetrators, acts
(financial or financial transactions) with the intention of
hiding or disguising the origin of wealth from its
illegitimate form (illegal) as if it were legal property.
Results: Money Laundering as a crime has the
characteristic that this crime is not a single crime but a
double crime. The point is that the criminal act of money
laundering is a form of crime committed either by a person
and/or corporation by deliberately placing, transferring,
spending, paying for the plunge, entrusting, taking out of
the country, changing the form, exchanging for currency or
securities or other acts of property that he knows or
reasonably suspects is the result of non-criminal
proceedings.
Conslusion: Based on the explanation above, it can be
concluded that the money laundering process has three
stages, namely the Placement or placing Stage, the second
is the Layering or Separating Stage, and the last is the
Integration Stage or the use of wealth that has appeared
legitimate.
Keywords: Criminal Acts, Money Laundering, Asabri
*Correspondent Author : Sareng Purnomo
Email : mailto:sarengpurnomo76@gmail.com
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INTRODUCTION
The 1945 Constitution of the Republic of Indonesia, Article 1 paragraph (3),
expressly states that the State of the Republic of Indonesia is a state of law.
A state of law is a country that upholds law enforcement and justice, which is an
absolute requirement for achieving national goals.
The national goal is to realize a just and prosperous system of life of the nation,
state and society in accordance with the values contained in Pancasila which has been the
philosophy of the life goals of the Indonesian people from the past to the present.
Violations committed must be subject to sanctions in accordance with applicable
rules as well. If the violation is public in nature then the violation falls into the category of
criminal law and must be sanctioned by criminal law.
Criminal law is part of the entire law in force in a country, which regulates which
acts can and cannot be done, prohibitions and imperatives that have been determined by
the government and if these rules are violated, they will get sanctions that have been set by
the government.
The characteristic of criminal law in real terms is the law that regulates the deeds
of legal subjects. The act includes crimes and offenses. The evils of the present are more
complex than the evils of the past.
In further developments, with the increasingly sophisticated various forms of crime
that have an international network and use financial institutions, especially banks, as targets
and means, examples can be put forward such as white crime or money loundering.
Then banks should be vigilant. In some countries, banks are required to have and
implement policies and systems of know-your-customer principles.
The crime of money laundering, in addition to being very detrimental to society, is
also very detrimental to the state, because it can affect or damage the stability of the national
economy or the country's finances with the increase of various crimes.
In this context, after the enactment of Law of the Republic of Indonesia Number
15 of 2002 concerning the Crime of Money Laundering (hereinafter referred to as the TPPU
Law).
Furthermore, it has been amended by Law of the Republic of Indonesia Number
25 of 2003 concerning the Crime of Money Laundering (hereinafter referred to as the TPPU
Law).
And replaced by Law Number 8 of 2010 concerning the Prevention and Eradication
of Money Laundering Crimes (hereinafter referred to as the PP-TPPU Law), it is hoped
that money laundering crimes can be prevented and eradicated.
The basic characteristic of money laundering is a crime motivated by the pursuit
of the greatest profit, this is different from other conventional crimes that frighten society.
This crime has the nature of creating creativity in the development of new crimes
of an international nature. Professionally organized using high technology and with the
service of profitable business means.
Broadly speaking, what can be understood from the opinions of experts can be
concluded that money laundering activities are a process of hiding or disguising wealth
obtained from the proceeds of crime in order to avoid prosecution and or confiscation.
Indonesia is a "paradise" for criminals as a place to launder money from crimes,
the money from the proceeds of these laundered crimes usually comes from white coller
crime.
In Indonesia, the money from these crimes is mainly obtained from corruption
crimes, so it can be said that the dominant crime in money laundering crimes is money
from corruption crimes.
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In Indonesia, corruption is familiar to the public, corruption has become an
outbreak of a contagious disease in every state apparatus from the lowest level to the
highest level.
Corruption is an extra ordinary crime as well as a crime that is difficult to find the
perpetrator (crime without offends), because corruption is a very difficult area to penetrate
(Rukmini, 2006).
Satjipto Rahardjo said that the prevention and eradication of corruption crimes
should not be carried out in a conventional way that must be carried out outside the norms
of countering other crimes (Rahardjo, 2006).
One of the investigations in the case of embezzlement of PT. ASABRI/BPKPP
(Soldier Welfare and Housing Management Agency).
Initially, the investigation started from the Director II/Security and Transnational
Police Headquarters. In the ongoing investigation process, the Police Headquarters
determined that the investigation process for the embezzlement of PT. ASABRI was
discontinued (SP3) due to lack of evidence.
With the dismissal of the investigation by the Police Headquarters, the case of
embezzlement of PT. ASABRI, the Prosecutor's Office conducted an investigation into
Subardja Midjaja as a suspect in the case of misuse of PT funds. ASABRI/BPKPP for the
same case, related to the investigation process of embezzlement of PT. ASABRI above,
situations like this are considered to cause a lack of legal certainty and are not in accordance
with the principles of legal protection as part of the protection of human rights.
On Saturday, the 6th of Month 3 of 2021, the Head of the Attorney General's
Office, Leonard Simanjuntak, in a press release said that based on the results of an expose
with the Young Attorney General for Special Crimes (Jampidsus), the Investigating
Prosecutor Team at the Directorate of Jampidsus Investigation of the Attorney General's
Office again determined the Suspect of Money Laundering Crimes (TPPU).
From the predicate crime , the case of Corruption in Financial Management and
Investment Funds in PT. Insurance of the Armed Forces of the Republic of Indonesia
(ASABRI) which is suspected of causing state financial losses of approximately Rp 23
trillion.
The parties who were determined as Suspects in the TPPU Case this time were
BTS and HH who had previously also been designated as Suspects in the Corruption Case
of Financial Management and Investment Funds at PT. ASABRI (Persero).
Leonard Simanjuntak revealed that the case began in the period from 2012 to 2019.
PT. ASABRI (Persero) has placed investments in the form of purchasing shares
and Mutual Fund products to certain parties through a number of nominees affiliated with
BTS and HH without being accompanied by fundamental analysis and technical analysis
and only made in formalities.
Meanwhile, the President Director, Investment and Finance Director, Head of
Investment Division as the responsible officer at PT. ASABRI (Persero) actually
collaborates with BTS and HH in the management and placement of PT. ASABRI
(Persero).
Cooperation in the form of shares and Mutual Fund products that are not
accompanied by fundamental analysis and technical analysis so that the investment violates
the provisions of the Standard Operating Procedures (SOP) and Investment Placement
Guidelines applicable to PT. ASABRI (Persero).
So on this basis, there are unlawful acts committed by the President Director,
Director of Investment and Finance, Head of Investment Division who approves the
investment placement of PT. ASABRI (Persero) does not go through fundamental analysis
and technical analysis, and only based on the analysis of mutual fund placements made in
formalities only.
Together with BTS as the Director of PT. Hanson International, HH as Director of
PT. Trada Alam Minera and Director of PT. Maxima Integra, LP as Director of PT. Eureka
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Prima Jakarta Tbk, SJS as Consultant, ES as nominee, RL as President Commissioner of
PT.
Fundamental Resourches and Beneficiary Owner and B as the nominee of BTS
SUGI shares through the ES nominee which resulted in irregularities in stock investment
and PT Mutual Funds. ASABRI and resulted in a loss of Rp.23,739,936,916,742.58
Therefore, BTS and HH as parties manage and cause state losses in this case PT.
ASABRI (Persero), designated as a TPPU Suspect by being subject to an article of
suspicion of violating articles 3 and / or 4 of Law Number 8 of 2010 concerning the
Prevention and Eradication of Money Laundering Crimes
(https://pji.kejaksaan.go.id/index.php/home/berita/1435).
RESEARCH METHODS
The research method used in this study is a normative legal research method.
Normative legal research is legal research carried out by examining library materials or
secondary data (Soekanto, 2007).
According to Peter Mahmud Marzuki, normative legal research is a process to find
a rule of law, legal principles, and legal doctrines to answer the legal issues at hand
(Marzuki, 2010)
In this type of legal research, often the law is conceptualized as what is written in
legislation or the law is conceptualized as a rule or norm that is a benchmark for human
behavior that is considered appropriate (Asikin, 2004).
RESULTS AND DISCUSSION
1.1 Juridical Review of Money Laundering Crimes
Money Laundering as a crime has the characteristic that this crime is not a single
crime but a double crime.
This is characterized by a form of money laundering as a follow-up crime or
follow-up crime, while the crime or crime of origin is referred to as predicate offence or
core crime or there is a state that formulates as unlawful actifity, which is the original crime
that makes money which is then carried out the laundering process.
In the provisions of Article 1 number (1) of Law Number 8 of 2010, it is stated that
money laundering is any act that meets the elements of a criminal act in accordance with
the provisions of the law.
In a sense, these elements in question are elements of the perpetrator, elements of
unlawful acts and elements are the result of criminal acts.
Meanwhile, the definition of money laundering crimes can be seen in the
provisions in articles (3), (4) and (5) of Law Number 8 of 2010.
The point is that the criminal act of money laundering is a form of crime committed
either by a person and/or corporation by deliberately placing, transferring, spending, paying
for the plunge, entrusting, taking out of the country, changing the form, exchanging for
currency or securities or other acts of property that he knows or reasonably suspects is the
result of non-criminal proceedings.
With the aim of hiding or disguising the origin of the wealth, including those who
receive and control it. Experts have classified the money laundering process into three
stages, namely:
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1. Placement stage, which is the stage where funds generated from a criminal
activity are placed, for example by depositing the dirty money into the
financial system.
2. The Layering Stage , which is what is meant by the layering stage, is the
stage by layering. Various ways can be done through this stage whose purpose
is to remove traces, both the original characteristics and the origin of the
money. For example, transferring funds from several accounts to other
locations or from one country to another and can be done many times,
breaking down the amount of funds in a bank with the intention of obscuring
its origin, transferring in the form of foreign exchange, buying shares, making
derivative transactions, and others.
3. The Integration stage is the stage of reuniting the gross money after going
through the placement or layering stages above, which for the money is then
used in various legal activities. In this way it will appear that the activities
carried out now are not related to the activities of the previous illegal
activities, and it is in this stage that then the dirty money has been laundered.
From the explanation above, it can be concluded that the purpose of the perpetrator
of money laundering is to hide or disguise the results of the predicate offence so that it is
not tracked for further use.
So it is not for the purpose of concealing alone but changing the performance or
origin of the proceeds of the crime for the next purpose and eliminating the direct
connection with the crime of origin.
From the definition of the criminal act of money laundering as explained above,
the criminal act of money laundering contains the following elements:
1. Perp
2. Acts (financial or financial transactions) with the intention of concealing or
disguising the origin of wealth from its illegitimate form (illegal) as if it were legal
property.
3. Is the result of a criminal act
The provisions in Law Number 8 of 2010 related to the formulation of money
laundering crimes use the word "everyone" where in article 1 number (9) it is emphasized
that Everyone is an individual or corporation.
Meanwhile, the definition of corporation is contained in article 1 number (10). In
this article, it is stated that a Corporation is an organized collection of people and/or wealth
whether it is a legal entity or not a legal entity.
Meanwhile, what is meant by a transaction according to the provisions of this Law
is all activities that give rise to rights or obligations or cause the emergence of a legal
relationship between two or more parties.
Financial transactions are defined as transactions to make or receive placements,
deposits, withdrawals, book transfers, transfers, payments, grants, donations, deposits, and
or other activities related to money.
Financial transactions that are elements of money laundering crimes are financial
transactions that steal or are suspected of both transactions in cash and through the transfer
/ transfer process.
Suspicious Financial Transactions according to the provisions contained in article
1 number (5) of Law Number 8 of 2010 are financial transactions that deviate from the
profile, characteristics, or habits of the transaction pattern of the customer concerned;
1. Financial transactions by financial service users that are reasonably suspected to
be carried out with the aim of avoiding reporting the relevant transactions that
must be carried out by Financial Service Providers in accordance with the
provisions of this law;
2. Financial transactions carried out or canceled are carried out using assets that are
suspected to be derived from the proceeds of criminal acts; or
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3. Financial transactions requested by PPATK to be reported by the Reporting Party
because they involve assets that are suspected to come from the proceeds of
criminal acts.
Mentioning the criminal act of money laundering, one of which must meet the
elements of an unlawful act as referred to in article 3 of Law Number 8 of 2010, where the
unlawful act occurs because the perpetrator commits an act of managing property which is
the result of a criminal act. The definition of the results of criminal acts is described in
Article 2 of Law Number 8 of 2010.
In this article, assets that are qualified as assets resulting from criminal acts are
assets derived from crimes such as: corruption, bribery, narcotics, psychotropics, labor
smuggling, migrant smuggling, banking, capital market, insurance, customs, excise,
trafficking in persons, illicit arms trade, terrorism, kidnapping, theft, embezzlement, fraud,
counterfeiting of money, gambling, prostitution, taxation, environmental field, forestry,
marine and fisheries and other criminal offences punishable by 4 years in prison.
It should be noted, that in proving the criminal act of money laundering, the
proceeds of the criminal act are elements that must be proven. Proving whether or not the
property is true is the result of a criminal act is to prove the existence of a criminal act that
produced the property.
It is not to prove whether it is true that there has been a predicate crime that
produces wealth. In the provisions as mentioned in article 3 of Law Number 8 of 2010,
several actions that can be qualified into the form of money laundering crimes are
identified.
Namely actions or actions that are intentional:
1. Placing property into a financial service provider either in one's own name or on
behalf of another person, when it is known or reasonably suspected that the
property was obtained through a criminal act.
2. Transferring assets that he knows or reasonably suspects to be the result of a
criminal act of money laundering, from one financial service provider to another
financial service provider, either in his own name or on behalf of another person.
3. Spending or using property that is known or reasonably suspected to be property
obtained from a criminal act. Either in the name of himself or in the name of the
other party.
4. Giving away or donating property that is known or reasonably suspected to be
property obtained from the proceeds of a criminal act, either in his own name or
on behalf of another party.
5. Entrusting property that is known or reasonably suspected to be property obtained
based on a criminal act, either on its own behalf or on behalf of another party.
6. Bringing abroad property that is known or reasonably suspected to be property
produced from a criminal act.
7. Exchanging or other acts of property that are known or reasonably suspected to be
the proceeds of a criminal act with currency or other securities, with the aim of
concealing/disguising the origin of the property
(https://www.negarahukum.com/).
1.2 Liability in the Case of Money Laundering Crimes Committed by the President
Director of PT. ASABRI
Geen straf zonder schuld or keine strafe ohne should or actus non facit reum nisi
mens sir rea is a very important principle in criminal law (Moelyatno, 2008).
Criminal liability is defined by Simon as a psychiatric state in such a way, that the
application of an attempted conviction, both in terms of the general perspective and from
the perspective of the person can be justified (Hiariej, 2016).
In other words, a criminal offender is considered capable of being responsible only
if his mental state is healthy, with the following characteristics:
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1) have the ability to realize or know that what it is doing is contrary to the law and
2) has the ability to determine his own will according to his consciousness.
The second opinion comes from Van Hamel who gives a definition of responsible
ability as a condition of psychiatric normality and maturity by providing three abilities,
including:
1) understand the consequences or reality of his own actions.
2) such a person has realized that his deeds are forbidden by society, and
3) has the ability to determine his own will in doing.
To judge a person can be held criminally liable or not must pay attention to such
conditions. The Criminal Code does not provide an understanding of a person's responsible
ability.
Rather the Criminal Code only formulates the ability to be responsible for a person
negatively and does not formulate it positively.
A person can only be held accountable if there is an error in the material sense /
verwijbaarheid, which includes three elements, including:
1) Able to take responsibility,
2) There is an inner connection between the perpetrator and what he does (dolus or
culpa) and the latter
3) There are no excuses for the removal of errors/excuses of forgiveness (schuld
uitsluitingsground) (Jaya et al., 2016).
Perpetrators of money laundering crimes can only be convicted if they have met
the elements mentioned above. To achieve the purpose of conviction, it is necessary to have
a criminal conviction.
The three well-known theories of the purpose of punishment according to most
scholars classify the reasons for punishment including: the theory of retribution
(retribution/absolute), the theory of purpose (utilitarian/doeltheorieen/relative), and the
combined theory (verenigingstheorieen).
Relating to criminal liability for perpetrators of money laundering crimes in
accordance with those contained in Article 2 paragraph (1) of Law Number 31 of 1999 as
amended and supplemented by Law Number 20 of 2001 concerning Amendments to Law
Number 31 of 1999 concerning the Eradication of Corruption Crimes jo. Article 55
paragraph (1) 1 of the Criminal Code.
CONCLUSION
Based on the explanation above, it can be concluded that the money laundering
process has three stages, namely the Placement or placing Stage, the second is the Layering
or Separating Stage, and the last is the Integration Stage or the use of assets that have
appeared to be legitimate.
And the elements of not criminal money laundering are perpetrators, acts (financial
or financial transactions) with the intention of hiding or disguising the origin of wealth
from its illegitimate form (illegal) as if it were legal property
Furthermore, Money Laundering is a difficult problem to prove, money laundering
is often carried out by utilizing the services or facilities provided by banks. If it is proven
to have committed a criminal act of money laundering, it will be subject to Law Number 8
of 2010 concerning the Prevention and Eradication of Money Laundering Crimes.
Suggestion
In enforcing material laws in the field of Money Laundering in Banking
Transactions, it is necessary to play the role of various parties.
Like Lawrance M. Friedman's theory of the Three Elements of Legal System that
there needs to be a role of substance, subject, legal culture in order for a law to be enforced.
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As Dr. Yenti Garnasih, S.H, M.H said in the latest UUTPPU still has many
loopholes so that many TPPU perpetrators can escape legal entanglement. Therefore, a
more concrete uuppu update is needed.
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(2016). Klinik Hukum Pidana Komponen Persiapan dan Praktek. Denpasar:
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Marzuki, P. M. (2010). Penelitian Hukum, Kencana Prenada Group. Jakarta. h, 35.
Moelyatno. (2008). Asas-Asas Hukum Pidana. Reineka Cipta.
Rahardjo, S. (2006). Membedah hukum progresif. Penerbit Buku Kompas.
Rukmini, M. (2006). Aspek Hukum Pidana dan Kriminologi (sebuah bunga
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Soekanto, S. (2007). Penelitian hukum normatif: Suatu tinjauan singkat.
© 2021 by the authors. Submitted for possible open access publication under the
terms and conditions of the Creative Commons Attribution (CC BY SA)
license (https://creativecommons.org/licenses/by-sa/4.0/).
