Legal Literacy - This article discusses restitution or compensation given to victims or heirs of victims of trafficking in persons (TIP) based on Law Number 21 of 2007 concerning the Eradication of TIP. Article 48 of the Law on the Eradication of TIP explains that victims or their heirs are entitled to restitution in the form of compensation for loss of property or income, suffering, medical and/or psychological treatment costs, and other losses suffered by the victim as a result of TIP. This article also discusses the mechanism for obtaining restitution rights, namely through criminal charges and civil lawsuits. In addition to restitution, this article also discusses other rights that must be granted to witnesses and victims of TIP such as revictimization, health rehabilitation, social rehabilitation, social reintegration, and repatriation.
Restitution (Compensation)
Law Number 21 of 2007 concerning the Eradication of Trafficking in Persons (TIP) regulates the importance of protecting witnesses and/or victims. One form of protection witnesses and/or victims referred to is that victims or heirs of victims are entitled to restitution from the perpetrators as compensation for the suffering that has been suffered by the victims. This is emphasized in Article 1 number 13 of Law Number 21 of 2007 concerning Eradication TIP that restitution is the payment of compensation charged to the perpetrator based on a decision that has permanent legal force (incracht) for material and/or immaterial losses suffered by the victim or their heirs.
Then in Article 48 of the Law on the Eradication of TIP, it is explained that victims or their heirs are entitled to restitution, in the form of compensation for: (1) Loss of property or income; (2) Suffering; (3) Costs for medical and/or psychological treatment; and/or (4) Other losses suffered by the victim as a result of trafficking in persons. Other losses referred to are such as loss of property, income as promised by the perpetrator, transportation costs, attorney fees or other costs related to the legal process.
Mechanism for Obtaining Restitution Rights
1. Through Criminal Charges
Restitution can be filed once the victim reports the case they experienced to the Police. This is in accordance with the explanation of Article 48 paragraph (1) of the Law on the Eradication of Trafficking in Persons, which explains that the submission of restitution is carried out once the victim reports the case they experienced to the local Indonesian National Police and is handled by the Investigator in conjunction with the handling of the crime committed. The application for restitution at the investigation level by the victim of the crime of trafficking in persons must be included in the Minutes of Witness and/or Victim Examination so that the restitution claim can be accepted by the judge of the court who examines and decides the case.
Furthermore, the Public Prosecutor must notify the victim of their right to file for restitution and make a criminal claim letter (requisitoir) that mentions the amount of loss suffered by the victim as a result of Trafficking in Persons. This has been regulated in the Technical Instructions of the Junior Attorney General for General Crimes Number: 3718/E/EJP/11/2012 dated November 28, 2012 Regarding Restitution in Trafficking in Persons Cases, which essentially states that the Public Prosecutor handling the case of Trafficking in Persons must notify the victim of their right to file for restitution in the form of compensation for: loss of wealth or income, suffering, costs for medical treatment and other losses suffered by victims of Trafficking in Persons, and simultaneously convey the amount of losses suffered by the victim in their demands, which restitution is also included by the Judge in the verdict,
2. Through Civil Lawsuit Channels
In addition to having the right to file for restitution through criminal mechanisms, victims also have the right to file their own lawsuit for damages suffered by using the form of an Unlawful Act lawsuit against the perpetrators of Trafficking in Persons. In filing the a quo lawsuit, the victim of Trafficking in Persons as the Plaintiff must of course wait for the court's decision that has decided the criminal case against the relevant perpetrator of Trafficking in Persons (Defendant).
Other Rights of Witnesses and Victims of TIP
In essence, the state must protect the rights of every individual. The rights of witnesses and victims of Trafficking in Persons, in addition to restitution, include procedural rights and service rights that must also be given to witnesses and victims, including: re-victimization, health rehabilitation, social rehabilitation, social reintegration, repatriation. In theory, there are 2 (two) models of witness and victim protection, namely the service model and the procedural right.
The model of witness and victim protection in the form of a service model, in this case, services to victims of Trafficking in Persons are made a specific target in the framework of investigation, investigation and other law enforcement activities. Therefore, it is necessary to create standard standards that can be used by law enforcement officials for the development of victims of crime and the provision of compensation as a restitutive criminal sanction.
Meanwhile, the procedural right protection model focuses on the possibility for victims of TIP to be able to play an active role in the judicial process. Victims, as subjects, must be given broad legal rights with the aim of demanding their interests. Thus, victims are placed as a third force in the criminal justice system.
The Law on the Eradication of TIP stipulates the rights of witnesses and/or victims of TIP, both in the service model and procedural rights, as follows:
- Article 18 regulates Revictimization, namely that victims who commit criminal acts because they are forced by perpetrators of TIP cannot be penalized;
- Article 27 stipulates that perpetrators of TIP will lose their right to collect debts or other agreements against the victim, if the debt or other agreement is used for exploitation;
- Article 33 stipulates that reporters have the right to have their names and addresses or other matters kept confidential if they provide the possibility of revealing the reporter's identity;
- Article 34 regulates that the reporter's information can be provided remotely through audio-visual communication tools;
- Article 35 stipulates that witnesses and/or victims have the right to be accompanied by advocates and/or other necessary companions at all levels of examination;
- Article 36 stipulates that witnesses and/or victims have the right to obtain information related to the development of the case, in the form of providing copies of the minutes of each stage of the examination;
- Article 37 stipulates that witnesses and/or victims can provide information in court without the presence of the defendant;
- Article 44 stipulates that witnesses or victims or families of witnesses and victims up to the second degree who act as reporters have the right to have their identities kept confidential;
- Article 48 to Article 50 regulate the right to restitution;
- Article 51 and Article 52 regulate health rehabilitation services, social rehabilitation, repatriation and social reintegration organized by the Social Protection Home or Trauma Center.
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