Electronic Evidence of Anti-Money Laundering Regimes
| Autor | John Richard Latuihamallo, . Pujiyono, Irma Cahyaningtyas |
| Cargo | Doctor in Law Candidate form Doctoral of Law Program, Universitas Diponegoro, Jalan Imam Bardjo, S.H., No. 1, Semarang City, Central Java 50241, Indonesia / Full Professor in Criminal Law from Faculty of Law, Universitas Diponegoro, Jalan dr. Antonius Suroyo, Tembalang, Semarang City, Central Java 50275, Indonesia / Full Doctor in Law and ... |
| Páginas | 189-220 |
Electronic Evidence of Anti-Money Laundering Regimes ... (p. 189-220) 189
LATUIHAMALLO, J. R.; PUJIYONO; CAHYANINGTYAS, I .
Electronic Evidence o f Anti-Money
Laundering Regi mes: A Comparative Study B etween United Kingdom, United States and Indonesia
.
The Law, State
and Telecomm unications Review
, v. 16, no. 1, p. 189-220, May 2024.
Electronic Evidence of Anti-Money Laundering
Regimes: A Comparative Study Between United
Kingdom, United States and Indonesia
Submitted
: 5 May 202 3
John Richard Latuihamallo*
https://orcid.org/0009-0009-0133-2393
Pujiyono**
https://orcid.org/0000-0001-8244-8092
Irma Cahyaningtyas***
https://orcid.org/0000-0003-2911-1268
DOI: https://doi.org/10.26512/lstr.v16i1.48449
Reviewed
: 24 June 20 23
Revised
: 1 July 2023
Accepted
: 8 July 2023
Article submitted to peer bl ind review
Licensed under a Creative Common s Attribution 4.0 International
Abstract
[Purpose]
To explore ho w comparing proof with c ountries with substant ial cryptographic
transaction vo lumes and preparednes s to perpetrate crypto mo ney laundering crimes, such
as the US and UK, can revolutionise era dicating money launderi ng crimes in Indonesia.
[Methodology/ap proach/design]
This study co mpares laws and regula tions in Indonesia,
the U S, and the U K and e xamines how electronic evidence and expert witne sses can be
crucial to crypto money laundering proof under each country's criminal procedural law.
The study also examine s how cryptocur rencies, blockc hain systems, and em erging
technologies i mpact law enforcement an d legislators' approach to the AML reg ime.
[Findings]
The resear ch reveals that, u nlike in the US and UK, electronic evidence is not
regulated in forma l criminal procedure law in Indonesia. The US and UK have defined
criteria for gathering an d removing electro nic evidence to ensure authenticity, validit y, and
integrity so that it may be generally accepted in court. The study rec ommends standardised
protocols for the collection and analysis of electronic ev idence, international protocols to
coordinate anti-mon ey laundering efforts a cross jurisdiction s, mechanisms to e nsure
transparency and acc ountability in the collection and use of electron ic ev idence, and
investments in technology and tra ining to ensure law e nforcement agencies have the tools
and knowledge to use electronic eviden ce effectively.
*
Doctor in Law Candidate form Doctoral of Law Program, Univer sitas Diponegoro, Jala n
Imam Bardjo, S.H., No. 1, Semarang City, Cen tral Java 50241, Indonesia . Email:
johnrichardundip2021@gmail.com.
**
Full Profess or in Criminal La w from Faculty of Law, Universi tas Diponegoro, Jala n dr.
Antonius Suroyo , Tembalang, Semarang City, Cen tral Java 50275, Indonesia. Email:
pujiyonofhundip@yahoo.com.
***
Full Doctor in Law and Senior Lect urer from the Faculty of Law , Universitas
Diponegoro, Jalan dr. An tonius Suroyo, Tembalang, Semarang City, Central Java 50275,
Indonesia. Em ail: irmacahyaningtyas@yahoo.com.
190
Electronic Evidence of Anti-Money Laundering Regimes ... (p. 189-220)
LATUIHAMALLO, J. R.; PUJIYONO; CAHYANINGTYAS, I .
Electronic Evidence o f Anti-Money
Laundering Regi mes: A Comparative Study Betw een United Kingdom, Unite d States and Indonesia
.
The Law, State
and Telecomm unications Review
, v. 16, no. 1, p. 189-220, May 2024.
[Practical implicat ions]
The study's r ecommendations have pr actical implications for t he
Indonesian gov ernment, law enforcement agen cies, and legislators. Adoptin g international
protocols, st andardised protocols for electronic evidence , and investing in technology and
training can improve the anti-m oney laundering regime and aid Indon esia's fight against
money launder ing crimes.
[Originality/value ]
This study contributes to understanding how electronic evide nce and
expert witnesses can be crucial to crypto money laundering proof u nder each country's
criminal procedural law. The study's re commendations pro vide a roadm ap for improvin g
the anti-money laund ering regime in Indonesia. They can be used as a reference for
countries facin g similar challenges in co mbating money launder ing crimes.
Keywords
: Electronic Evidence . Anti-Money Laundering. Crypt ocurrencies. Comparative
Law.
INTRODUCTION
The emergence of cryptocurrencies can have both beneficial and bad
outcomes, such as using cryptocurrencies as investment commodities or
transaction tools, respectively (OTHMAN et al., 2020). The characteristics of
cryptocurrencies, which promote anonymous and decentralised transactions,
present several options that can be used to fund various illegal activities (WANG
& ZHU, 2021). Additionally, the use of encryption technology makes it more
difficult for law authorities to investigate and prosecute crimes committed with
cryptocurrencies as a means of payment. In addition to facilitating money
laundering, these characteristics make it more difficult to enforce laws,
particularly in the verification process. This is especially true in nations where
cryptocurrencies are not regulated in the constitution, particularly concerning
their status as legal tender, as is the case in Indonesia (PUTRA & PUTRANTO,
2022). Although many nations do not regulate the legitimacy of cryptocurrencies
as a form of legal cash, several nations have made it legally permissible to acquire
and sell crypto assets in the same way that people can legally buy and sell stocks.
The United States, the United Kingdom, Canada, Singapore, and South Korea are
some of the countries that have leg alised cryptocurrencies as transaction
commodities on the stock market (ANTHONY DAS et al., 2018). In this instance,
Japan and Australia provide legality to cryptocurrencies in the same way they do
to fiat money, despite the fact that cryptocurrencies are still restricted by the
obligation to report their ownership to the authorities in both countries . In this
context, Japan provides a definition that is distinct from the definitions provided
by other countries, which generally classify cryptocurrencies as virtual currencies.
Instead, Japan defines cryptocurrencies as crypto assets through the Payment
Electronic Evidence of Anti-Money Laundering Regimes ... (p. 189-220) 191
LATUIHAMALLO, J. R.; PUJIYONO; CAHYANINGTYAS, I .
Electronic Evidence o f Anti-Money
Laundering Regi mes: A Comparative Study B etween United Kingdom, United States and Indonesia
.
The Law, State
and Telecomm unications Review
, v. 16, no. 1, p. 189-220, May 2024.
Service Act and amendments to the Financial Instruments and Exchang e Act
(FIEA), particularly in opposition to Bitcoin (FUJIWARA, 2023). The bitcoin
market is subject to income tax in Australia, which has a system quite similar to
what we have here (TAN & LOW, 2017).
The supervision of var ious actions that use cryptocurrency is impacted in
various ways by these two categories of legislation (CHAWKI, 2022) . For
instance, when the cryptocurrency is regarded as a tax object, its owner must
report all transactions. In particular, when cryptocurrency is regar ded as a tax
object, the state is granted the authority to carry out more stringent oversight than
when cryptocurrency is regarded as a stock commodity. This has implications for
the possibility of using cryptocurrencies as a medium for criminal acts, such as
what occurred in the Un ited States with a money laundering (Bitcoin) value of
$4.5 billion with the suspect Ilya Lichtenstein and his wife Heather Morgan
(READ, 2022) or the Asabri money laundering case with allegations against three
suspects who were hiding the results of their crime with the media in the form of
cryptocurrency (TRISAKTI & SOPONYONO, 2021). Both of these cases involve
suspects who hid the results o f their crimes from the media in the form of
cryptocurrency (Bitcoin). Even though the marketplace where buying and selling
must first obtain permission from the government, in practice, the practices of
these two nations do not regulate cryptocurrencies as a legal medium of exchange
and legalise their transactions in a definite buying and selling (crypto) market (as
a commodity), these two nations do not provide regulation of cryptocurrencies as
a legal medium of exchange (BAINS et al., 2022). Continuing to engage in such
actions puts one in jeopardy.
With a total value of more than $33 billion in proceeds from 2017 to the
present, the growth of money laundering cases in the world that use
cryptocurrency has been worrying globally since th e corruption and money
laundering cases inv olving PT. Asabri, which resulted in an estimated state loss
of IDR 10.5 trillion, has increased awaren ess of money laundering cases in
Indonesia involving cryptocurrencies (SIREGAR & SITORUS, 2022). However,
not all the money that was laundered was made so under th e guise of a
cryptocurrency. The limited amount of data readily available on instances of
money laundering through cryptocurrency is directly correlated with the
challenges presented to detection and law enforcement (FLETCHER et al., 2021).
Concerns regarding law enforcement in the context of money laundering
crimes, particularly those committed through cryptocurrency facilities, are linked
to several factors (DUMCHIKOV et al., 2023). These factors include legal
arrangements for money laundering and cryptocurrency crimes (legal material),
law enforcement, facilities and in frastructure, and commun ity factors. It is
generally agreed upon that each of the facets mentioned above will make
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