2023-08-07 | POJK 16 Tahun 2023Added
This regulation expands the investigative authority of the Financial Services Authority (OJK) to cover new sectors including derivative finance, carbon exchanges, financial technology innovation, digital financial assets, and crypto assets, while replacing the previous 2015 regulation. It establishes a violation settlement mechanism allowing suspected offenders to resolve cases through restitution and administrative sanctions during the investigation phase, subject to approval by an Analysis Team. The regulation defines the powers of OJK investigators, including the ability to block accounts, request information from financial institutions, and conduct money laundering investigations, while mandating coordination with the Indonesian National Police.
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FINANCIAL SERVICES AUTHORITY
REPUBLIC OF INDONESIA
COPY
FINANCIAL SERVICES AUTHORITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 16 OF 2023
CONCERNING
CRIMINAL INVESTIGATION IN THE FINANCIAL SERVICES SECTOR BY THE GRACE OF GOD THE ALMIGHTY THE COMMISSIONERS COUNCIL OF THE FINANCIAL SERVICES AUTHORITY, Considering:
a. that Law Number 21 of 2011 concerning the Financial Services Authority has granted authority to the Financial Services Authority to conduct criminal investigations in the financial services sector; b. that with the enactment of Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector, the investigative authority and resolution of violations in the financial services sector have been expanded to the Financial Services Authority;
c. that the regulations in Financial Services Authority Regulation Number 22/POJK.01/2015 concerning Criminal Investigation in the Financial Services Sector need to be adjusted to Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector, thus needing to be replaced;
d. that based on the considerations as referred to in letters a, b, and c, it is necessary to establish a Financial Services Authority Regulation concerning Criminal Investigation in the Financial Services Sector; Recalling: Law Number 21 of 2011 concerning the Financial Services Authority (State Gazette of the Republic of Indonesia Year 2011 Number 111, Supplement to the State Gazette of the Republic of Indonesia Number 5253) as amended by Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector (State Gazette of the Republic of Indonesia Year 2023 Number 4, Supplement to the State Gazette of the Republic of Indonesia Number 6845);
CHAPTER I
GENERAL PROVISIONS
Article 1
In this Financial Services Authority Regulation, the following terms are defined as:
Article 2
(1) Criminal Offenses in the Financial Services Sector as referred to in Article 1 number 1 include criminal offenses:
a. banking; b. capital markets, derivative finance, and carbon exchanges;
c. insurance, guarantee, and pension funds;
d. financing companies, venture capital companies, microfinance institutions, and other LJKs; e. financial sector technology innovation as well as digital financial assets and crypto assets; f. conduct of financial service business actors as well as the implementation of education and consumer protection; and g. others as regulated in laws concerning the financial services sector. (2) Criminal Offenses in the Financial Services Sector as referred to in paragraph (1) cover conventional and Sharia activities.
CHAPTER II
INVESTIGATIVE AUTHORITY FOR CRIMINAL OFFENSES IN THE FINANCIAL SERVICES SECTOR First Section Financial Services Authority Investigators
Article 3
(1) The Financial Services Authority has the authority to conduct Investigation and/or Criminal Investigation.
(2) Investigation and/or Criminal Investigation as referred to in paragraph (1) is conducted by Financial Services Authority Investigators.
(3) Financial Services Authority Investigators as referred to in paragraph (2) consist of:
a. officials of the Indonesian National Police; b. certain civil servant officials; and
c. certain employees,
who are given special authority as investigators as referred to in the Criminal Procedure Code, to conduct Criminal Investigation.
Article 4
(1) Financial Services Authority Investigators as referred to in Article 3 paragraph (3) are established in a Decision of the Commissioners Council of the Financial Services Authority. (2) Investigators originating from certain civil servant officials as referred to in Article 3 paragraph (3) letter b are appointed by the minister in charge of government affairs in the field of law. (3) Certain employees as referred to in Article 3 paragraph (3) letter c originate from permanent employees of the Financial Services Authority and civil servants employed at the Financial Services Authority. (4) Certain employees given special authority as investigators as referred to in Article 3 paragraph (3) letter c are established after meeting qualifications determined by the Indonesian National Police. (5) The administration of appointment, transfer, dismissal, and swearing-in of investigators as referred to in paragraph (2) and paragraph (4) is carried out by the minister in charge of government affairs in the field of law.
Second Section
Authority of Financial Services Authority Investigators
Article 5
(1) Financial Services Authority Investigators as referred to in Article 3 paragraph (3) have the authority and responsibility to:
a. receive reports, notifications, or complaints from anyone regarding the existence of a Criminal Offense in the Financial Services Sector; b. conduct research on the truth of reports or statements concerning Criminal Offenses in the Financial Services Sector;
c. conduct research on any person suspected of committing or being involved in a Criminal Offense in the Financial Services Sector;
d. summon, examine, and request statements and evidence from any person suspected of committing, or as a witness in, a Criminal Offense in the Financial Services Sector; e. request competent agencies to conduct prevention against Indonesian citizens and/or foreigners and caution against foreigners suspected of committing a Criminal Offense in the Financial Services Sector; f. conduct examinations of accounting books, records, and other documents concerning Criminal Offenses in the Financial Services Sector; g. request assistance from the Indonesian National Police or other related agencies to conduct arrest, detention, search, and seizure in Criminal Offense cases in the Financial Services Sector being handled; h. conduct searches in any specific place suspected of containing evidence such as accounting books, records, and other documents, and conduct seizure of items that can be used as evidence in Criminal Offense cases in the Financial Services Sector;
i. block accounts at banks or other financial institutions of any person suspected of committing or being involved in a Criminal Offense in the Financial Services Sector;
j. request data, documents, or other evidence, both printed and electronic, from telecommunications service providers or data and/or document storage service providers; k. request statements from LJKs regarding the financial condition of parties suspected of committing or being involved in violations of regulations in the financial services sector;
l. request expert assistance in carrying out the duties of Criminal Investigation in the Financial Services Sector;
m. conduct TPPU investigations with the original criminal offense being a Criminal Offense in the Financial Services Sector; n. request assistance from other law enforcement agencies; and o. submit the results of Criminal Investigation to the Prosecutor for prosecution in accordance with applicable regulations. (2) Requests for prevention and caution assistance as referred to in paragraph (1) letter e are established by the Head of the unit carrying out the Investigation function on behalf of the Chairman of the Commissioners Council of the Financial Services Authority, and submitted to the minister in charge of government affairs in the field of law.
Article 6
(1) Financial Services Authority Investigators have the authority to determine whether Investigation is conducted or not against suspected Criminal Offenses in the Financial Services Sector. (2) In the event that Financial Services Authority Investigators determine that Investigation is conducted against suspected Criminal Offenses in the Financial Services Sector, Investigation is conducted before the start of Criminal Investigation. (3) Financial Services Authority Investigators have the authority to establish the start, non-conduct, or cessation of Criminal Investigation against Criminal Offenses in the Financial Services Sector. (4) In carrying out Criminal Investigation as referred to in Article 3 paragraph (1), the Financial Services Authority coordinates with the Indonesian National Police. (5) In cases of necessity, Financial Services Authority employees who are not Financial Services Authority Investigators may be assigned to assist the activities of Financial Services Authority Investigators.
Third Section
Authority for TPPU Investigation
Article 7
(1) Financial Services Authority Investigators have the authority to conduct TPPU investigations with the original criminal offense in the financial services sector as referred to in Article 2. (2) Financial Services Authority Investigators may request information and/or analysis results regarding financial transactions indicating TPPU in the financial services sector from the Financial Transaction Reports and Analysis Center.
CHAPTER III
REPORTS, NOTIFICATIONS, OR COMPLAINTS REGARDING SUSPECTED CRIMINAL OFFENSES IN THE FINANCIAL SERVICES SECTOR
Article 8
Any party may submit reports, notifications, or complaints regarding suspected Criminal Offenses in the Financial Services Sector to the Financial Services Authority.
Article 9
(1) Reports, notifications, or complaints as referred to in Article 8 are submitted in writing and/or in person directly to the Financial Services Authority. (2) Reports, notifications, or complaints submitted in writing as referred to in paragraph (1) must at least include:
a. the name of the reporter; b. the identity of the reporter;
c. the reported party;
d. a description of the incident and/or actions suspected to be a Criminal Offense in the Financial Services Sector; and e. supporting documents.
Article 10
(1) Upon written request from the reporter, the Financial Services Authority provides updates on the handling of reports, notifications, or complaints of suspected Criminal Offenses in the Financial Services Sector reported by the reporter. (2) Updates on the handling of reports, notifications, or complaints of suspected Criminal Offenses in the Financial Services Sector as referred to in paragraph (1) can only be provided after the Financial Services Authority establishes the start of Criminal Investigation.
CHAPTER IV
PROCEDURE FOR RESOLVING VIOLATIONS OF LAWS AND REGULATIONS IN THE FINANCIAL SERVICES SECTOR
Article 11
(1) At the Investigation stage as referred to in Article 6 paragraph (2), the party suspected of committing a Criminal Offense in the Financial Services Sector may submit a request to the Financial Services Authority for violation resolution of laws and regulations in the financial services sector. (2) The violation resolution request as referred to in paragraph (1) must contain:
a. the value of losses caused and the basis for its calculation; b. the number of victims harmed and other information regarding victims;
c. the form of loss resolution and the time limit for resolution;
d. a clause stating that if losses are not resolved, the Financial Services Authority has the authority to proceed to the Criminal Investigation stage; and e. efforts to improve business processes and governance. (3) The Financial Services Authority assesses the content of the violation resolution request as referred to in paragraph (2) and calculates the value of losses from the violation. (4) In assessing the violation resolution request and calculating the value of losses from the violation as referred to in paragraph (3), the Financial Services Authority considers at least:
a. the existence or non-existence of resolution for losses caused by the criminal offense; b. the transaction value and/or the value of losses from the violation; and
c. the impact on the financial services sector, LJKs, and/or the interests of customers, investors, and/or the public.
(5) In assessing the violation resolution request and calculating the value of losses from the violation as referred to in paragraph (3), the Financial Services Authority forms an Analysis Team to assist Financial Services Authority Investigators. (6) To assess the violation resolution request, Financial Services Authority Investigators may invite parties outside the Financial Services Authority.
Article 12
(1) Financial Services Authority Investigators submit approval or rejection of the violation resolution request to the party submitting the request within a maximum of 30 (thirty) working days since the documents were received completely by the Financial Services Authority Investigator. (2) In the event that the violation resolution request is approved, the party suspected of committing a Criminal Offense in the Financial Services Sector must declare agreement within a maximum of 7 (seven) working days since the approval of the violation resolution request. (3) In the event that the request is not approved, the Financial Services Authority Investigator:
a. submits rejection of the violation resolution request; and b. has the authority to proceed to the Criminal Investigation stage.
Article 13
Violation resolution as referred to in Article 11 is conducted in accordance with the characteristics of each financial services sector.
Article 14
(1) In the event that the Financial Services Authority approves the violation resolution request as referred to in Article 12 paragraph (2), the party submitting the violation resolution request is obligated to implement the agreement, including paying compensation. (2) The agreement as referred to in paragraph (1) takes the form of:
a. an agreement agreed upon by the Financial Services Authority and the party submitting the violation resolution request; b. a statement letter from the party submitting the violation resolution request; or
c. documents in other forms.
Article 15
(1) Compensation as referred to in Article 14 paragraph (1) is the right of the harmed party and is not income of the Financial Services Authority.
(2) Compensation as referred to in Article 14 paragraph (1) can be paid in cash and/or assets that can be valued in money.
(3) In the event that payment is made in the form of assets as referred to in paragraph (2), it must obtain approval from the harmed party.
(4) The party suspected of committing a Criminal Offense in the Financial Services Sector is obligated to fulfill the violation resolution as referred to in Article 14 paragraph (1) within a maximum of 1 (one) year since the agreement was signed, based on the complexity of the violation resolution. (5) Resolution of losses caused is followed by a statement from all involved parties that they have no objection and waive their right to sue in court. (6) All costs arising from the violation resolution agreement for laws and regulations in the financial services sector become the burden of the party submitting the violation resolution request.
Article 16
(1) In addition to compensation as referred to in Article 14 paragraph (1), the Financial Services Authority has the authority to establish administrative measures in the form of administrative sanctions against parties suspected of committing Criminal Offenses in the Financial Services Sector. (2) Administrative sanctions as referred to in paragraph (1) include:
a. written warning; b. restriction of products and/or services and/or business activities for part or all;
c. freezing of products and/or services and/or business activities for part or all;
d. dismissal of management; e. administrative fines; f. revocation of product and/or service licenses; and/or g. revocation of business licenses; and/or h. other administrative sanctions established by the Financial Services Authority.
Article 17
(1) The party suspected of committing a Criminal Offense in the Financial Services Sector reports the violation resolution to the Financial Services Authority Investigator accompanied by documents proving the violation resolution. (2) The Financial Services Authority Investigator verifies the truth of the violation resolution proof documents. (3) In the event that the violation resolution agreement as referred to in paragraph (1) has been fully fulfilled by the party submitting the violation resolution request, the Financial Services Authority Investigator stops the Investigation. (4) In the event that the party submitting the violation resolution request does not fulfill part or all of the agreement, the Financial Services Authority has the authority to proceed to the Criminal Investigation stage.
CHAPTER V
REQUESTS FOR STATEMENTS FROM LJKs AND ACCOUNT BLOCKING
Article 18
(1) For the interests of Criminal Investigation, Financial Services Authority Investigators may request statements from LJKs regarding the financial condition of parties suspected of committing or being involved in violations of laws and regulations in the financial services sector. (2) LJKs as referred to in paragraph (1) are obligated to fulfill the request of the Financial Services Authority Investigator. (3) LJKs that do not fulfill the request of the Financial Services Authority Investigator as referred to in paragraph (2) are subject to sanctions in accordance with applicable regulations.
Article 19
(1) Financial Services Authority Investigators have the authority to block accounts at banks or other financial institutions of any person suspected of committing or being involved in a Criminal Offense in the Financial Services Sector as referred to in Article 5 paragraph (1) letter i before and during the Criminal Investigation stage. (2) Banks or other financial institutions as referred to in paragraph (1) are obligated to block accounts of any person suspected of committing or being involved in a Criminal Offense in the Financial Services Sector as requested by the Financial Services Authority Investigator. (3) Banks or other financial institutions that do not fulfill the request of the Financial Services Authority Investigator as referred to in paragraph (2) are subject to sanctions in accordance with applicable regulations.
CHAPTER VI
INVESTIGATION ADMINISTRATION
Article 20
(1) Every action by the Financial Services Authority Investigator is recorded in investigation administration.
(2) Investigation administration as referred to in paragraph (1) is established by the Financial Services Authority.
CHAPTER VII
FOLLOW-UP ON INVESTIGATION RESULTS
Article 21
Financial Services Authority Investigators, within their authority, submit the results of Criminal Investigation to the Prosecutor for prosecution in accordance with applicable regulations.
CHAPTER VIII
CLOSING PROVISIONS
Article 22
Upon this Financial Services Authority Regulation taking effect, Financial Services Authority Regulation Number 22/POJK.01/2015 concerning Criminal Investigation in the Financial Services Sector (State Gazette of the Republic of Indonesia Year 2015 Number 315, Supplement to the State Gazette of the Republic of Indonesia Number 5785) is repealed and declared invalid.
This copy is in accordance with the original
Director of Law 1
Legal Department signed
Mufli Asmawidjaja
Article 23
This Financial Services Authority Regulation takes effect on the date of its enactment.
To ensure everyone knows it, it is ordered to enact this Financial Services Authority Regulation by placing it in the State Gazette of the Republic of Indonesia. Established in Jakarta on August 4, 2023 CHAIRMAN OF THE COMMISSIONERS COUNCIL FINANCIAL SERVICES AUTHORITY REPUBLIC OF INDONESIA, signed MAHENDRA SIREGAR Enacted in Jakarta on August 7, 2023 MINISTER OF LAW AND HUMAN RIGHTS REPUBLIC OF INDONESIA, signed YASONNA H. LAOLY STATE GAZETTE OF THE REPUBLIC OF INDONESIA YEAR 2023 NUMBER 25/OJK
EXPLANATION
OF
FINANCIAL SERVICES AUTHORITY REGULATION
REPUBLIC OF INDONESIA
NUMBER 16 OF 2023
CONCERNING
CRIMINAL INVESTIGATION IN THE FINANCIAL SERVICES SECTOR
I. GENERAL
The Financial Services Authority, in accordance with Law Number 21 of 2011 concerning the Financial Services Authority, was formed with the goal that all financial services activities within the financial services sector are conducted in an orderly, fair, transparent, and accountable manner, and are able to realize a financial system that grows sustainably and stably, which ultimately is able to protect consumer and public interests. Through Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector, the regulatory and supervisory tasks are expanded, including derivative finance, carbon exchanges, Financial Sector Technology Innovation, digital financial assets, and crypto assets. Furthermore, based on Constitutional Court Decision Number 15/PUU-XIX/2021 dated June 29, 2021, Financial Services Authority Investigators have had the authority to conduct TPPU investigations with the original criminal offense being a Criminal Offense in the Financial Services Sector. This regulation has also been codified in Law Number 4 of 2023 concerning the Development and Strengthening of the Financial Sector and this Financial Services Authority Regulation. The rapid development of financial services products and services, information science and technology, and the globalization of financial transactions, on one hand, has the potential to support the advancement of the financial services sector. However, on the other hand, it can also disrupt the stability of the financial system due to the emergence of more complex crime modus operandi, thus requiring appropriate handling. In responding to the development of Criminal Offenses in the Financial Services Sector, the concept of law enforcement does not always have to be through the imposition of criminal sanctions, but the Financial Services Authority is given the authority to prioritize the restoration of the condition of the harmed party first, known as the principle of restorative justice, through violation resolution requests for laws and regulations in the financial services sector. Furthermore, financial services industry actors and the public need to be given access to participate in the prevention and handling of criminal offenses in the financial services sector. Considering these matters, to support the strengthening of regulations on the authority of Financial Services Authority Investigators in the Financial Services Sector, it is necessary to strengthen regulations concerning Criminal Investigation in the Financial Services Sector in this Financial Services Authority Regulation.
II. ARTICLE BY ARTICLE
Article 1
Clearly sufficient.
Article 2
Paragraph (1)
Letter a
Clearly sufficient.
Letter b
Clearly sufficient.
Letter c
Clearly sufficient.
Letter d
Clearly sufficient.
Letter e
Clearly sufficient.
Letter f
Clearly sufficient.
Letter g
Other criminal offenses include, among others, criminal offenses of business activities without a license in the financial services sector.
Paragraph (2)
Clearly sufficient.
Article 3
Paragraph (1)
Investigation and/or Criminal Investigation is conducted by observing the principles of legal certainty, benefit, and justice.
Paragraph (2)
Clearly sufficient.
Paragraph (3)
Clearly sufficient.
Article 4
Clearly sufficient.
Article 5
Paragraph (1)
Letter a
Clearly sufficient.
Letter b
Clearly sufficient.
Letter c
The term "any person" refers to an individual, corporation, or business entity, whether in the form of a legal entity or not, or any other body.
Letter d
Clear enough.
Letter e
Clear enough.
Letter f
The term "other agencies" refers to agencies required by the Financial Services Authority Investigator to assist in the implementation of the Investigation.
Letter h
Clear enough.
Letter i
Clear enough.
Letter j
Clear enough.
Letter k
Clear enough.
Letter l
Clear enough.
Letter m
Clear enough.
Letter n
Other law enforcement agencies include the prosecutor's office, police, and courts.
Letter o
Clear enough.
Paragraph (2)
Clear enough.
Article 6
Paragraph (1)
The determination to conduct an Investigation is based on information reports or incident reports regarding suspected Criminal Acts in the Financial Services Sector.
Paragraph (2)
Clear enough.
Paragraph (3)
Clear enough.
Paragraph (4)
Clear enough.
Paragraph (5)
The term "assisting the activities of the Financial Services Authority Investigator" includes, among other things, reviewing cases, assistance in summoning witnesses, experts, and suspects, assistance in handing over case files to the Republic of Indonesia Prosecutor's Office, and assistance in coordination regarding the handover of suspects and evidence.
Article 7
Clear enough.
Article 8
Clear enough.
Article 9
Paragraph (1)
The submission of reports, notifications, or complaints in writing can be done via mail, electronic mail, and/or fax.
Reports, notifications, or complaints submitted directly can be made to the work unit implementing the Investigation function at the Financial Services Authority Headquarters, Regional Offices, and/or Financial Services Authority Offices.
Paragraph (2)
Letter a
Clear enough.
Letter b
Clear enough.
Letter c
Clear enough.
Letter d
Clear enough.
Letter e
The term "supporting documents" includes, among other things, credit agreements, transaction proofs, conversation proofs, and recording proofs.
Article 10
Clear enough.
Article 11
Paragraph (1)
The term "party suspected of committing a Criminal Act in the Financial Services Sector" refers to any person and/or legal entity.
The application is submitted to the Financial Services Authority c/o the work unit implementing the Investigation function.
Paragraph (2)
Clear enough.
Paragraph (3)
Clear enough.
Paragraph (4)
Letter a
Settlement of losses arising from criminal acts is accompanied by supporting documents.
Letter b
Clear enough.
Letter c
Impact on the financial services sector, Financial Service Institutions (LJK), and/or the interests of customers, investors, and/or the public, namely losses that have a broad impact or do not impact the financial services sector and/or the interests of customers and/or the public, among others, considering the scale and type of LJK. Considerations regarding the scale and type of LJK are viewed from the condition of the LJK in each case, with considerations including, among other things, the amount of assets and/or capital.
Paragraph (5)
The Analysis Team formed consists of, among others, the work unit implementing the Investigation function, the LJK supervision function, and the risk management and quality control function at the Financial Services Authority.
Paragraph (6)
The term "other parties outside the Financial Services Authority" includes, among others, the Police, experts, and consultants.
Article 12
Paragraph (1)
The term "received completely" means the documents are true and correspond to the violation and the application for settlement of the violation.
Paragraph (2)
Clear enough.
Paragraph (3)
Clear enough.
Article 13
Considering that the Financial Services Authority supervises LJK and activities in the financial services sector in the fields of Banking, Capital Market, Insurance, and other LJK, the regulation and implementation of violation settlement can be adjusted to the business characteristics and business activities in each financial services sector so that settlement can be carried out optimally.
Article 14
Paragraph (1)
Agreement materials other than compensation payment include, among other things, business process and governance improvements.
In addition to being an agreement, compensation can also be funds derived from the return of profits obtained or losses avoided illegally in the enforcement of criminal acts in the financial services sector.
Paragraph (2)
Letter a
Clear enough.
Letter b
Clear enough.
Letter c
The term "documents in other forms" can include a violation settlement deed.
Article 15
Paragraph (1)
Clear enough.
Paragraph (2)
Clear enough.
Paragraph (3)
The injured parties include, among others, LJK, customers, investors, and/or the public.
Paragraph (4)
Clear enough.
Paragraph (5)
The statement is made in writing by all involved parties and submitted by the perpetrator to the Financial Services Authority.
The involved parties are the victims and the perpetrators.
Paragraph (6)
The term "costs incurred" includes, among other things, asset valuation costs and document ownership verification costs.
Article 16
Clear enough.
Article 17
Clear enough.
Article 18
Paragraph (1)
Clear enough.
Paragraph (2)
Clear enough.
Paragraph (3)
The term "legislation" includes, among other things, Laws regarding banking, Laws regarding Sharia banking, and Laws regarding the capital market.
Article 19
Paragraph (1)
The term "other financial institutions" includes, among others, LJK.
See the explanation of Article 5 paragraph (1) letter c.
Paragraph (2)
Clear enough.
Paragraph (3)
Clear enough.
Article 20
Paragraph (1)
Investigation administration includes the case file cover, the contents of the case file, and other administrative completeness.
Paragraph (2)
Clear enough.
Article 21
Clear enough.
Article 22
Clear enough.
Article 23
Clear enough.
SUPPLEMENT TO THE STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER 49/OJK
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