Pertanggungjawaban Pidana Non-Profit Organisations (NPO Yayasan) dalam Tindak Pidana Pencucian Uang di Indonesia

Abstract

Money laundering crimes have a massive impact on the economy and are transboundary as well. The Financial Transaction Reports and Analysis Center (PPATK) identifies Non-profit organizations (NPO/Foundations) as being in the highrisk category of ML/TF, often used to accommodate the proceeds of crime and as a means of money laundering. This is due to the absence of an obligation for foundations to ensure the origin of funds received. Although Article 45 of the Criminal Code 2023 and Article 1 point 9 of the Anti-Money Laundering Law regulate corporations as subjects of criminal acts, up to now there has been no criminal case that imposes criminal liability on NPO/Foundations as perpetrators of ML. This research aims to address the following issues: 1) what are the risk factors for NPO/Foundations to be involved as ML offenders; 2) how is the criminal liability of NPO/Foundations as ML offenders; and 3) what are the regulatory challenges related to efforts to prevent and eradicate ML against NPO/Foundations. This research uses normative research method by utilizing library research. The results show that the risk factors of NPO/Foundation involvement in ML are: 1) establishment of NPO/Foundations using initial wealth from criminal offenses; 2) anonymous donations; 3) unusual transactions; and 4) misuse of funds; 5) misuse of foundation assets for unauthorized business activities. NPO/Foundations can be involved as perpetrators of ML crimes, either as active (principle violator and aider) or passive (abettor). Categorized as a corporation, NPO/Foundations can be held criminally liable as a subject of criminal law. The regulation of criminal liability of NPO/Foundations in ML refers to the provisions of Articles 6 and 7 of the Anti-Money Laundering Law and Article 4 Paragraph (2) of Supreme Court Regulation No. 13/2016 which regulates corporate criminal liability. Regulatory challenges regarding the prevention and eradication of ML against NPO/Foundations include the weakness of the legal framework for the supervision of NPO/Foundations and the absence of rules regarding the legal obligation to apply donor due diligence for NPO/Foundations. This research highlights the importance of preventing the risk of NPO/Foundation involvement in ML through strengthening the principle of prudence, especially the application of donor due diligence in every transaction. As well as the urgency for law enforcement officials to be able to properly assess the form of NPO/Foundation misconduct, both intentional and negligent and its impact on sentencing.