Restitution and Protection of the Rights of Witnesses and Victims in the Crime of Trafficking in Persons (TPPO)

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 TIP Eradication Law 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 mechanisms 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 perpetrator as compensation for the suffering that the victim has suffered. This is affirmed in Article 1 number 13 of Law Number 21 of 2007 concerning the Eradication of 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 TIP Eradication Law, 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, lawyer fees or other costs related to the legal process.

Mechanism for Obtaining Restitution Rights

1. Through Criminal Charges

Restitution can be filed since the victim reports the case to the Police. This is in accordance with the explanation of Article 48 paragraph (1) of the TIP Eradication Law which explains that the submission of restitution is carried out since the victim reports the case he/she experienced to the local Indonesian National Police and is handled by the Investigator together with the handling of the crime committed. The application for restitution at the investigation level by the victim of the act trafficking in persons must be included in the Minutes of Examination of Witnesses and/or Victims 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 his/her right to file for restitution and make a criminal indictment (requisitoir) which mentions the amount of loss suffered by the victim as a result of TIP. 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 TIP Cases, which basically states that the Public Prosecutor handling the case TIP must notify the victim of his/her right to file for restitution in the form of compensation for: loss of property or income, suffering, costs for medical treatment and other losses suffered by TIP victims and simultaneously convey the amount of losses suffered by the victim in his/her demands, which restitution is also included by the Judge in his/her verdict,

2. Through Civil Lawsuit

In addition to being entitled to file for restitution through a criminal mechanism, the victim also has the right to file his/her own lawsuit for losses suffered by using the form of an Unlawful Act lawsuit against the TIP perpetrator. In filing the a quo lawsuit, the TIP victim as the Plaintiff must of course wait first for the court decision that has decided the criminal case against the TIP perpetrator (Defendant) concerned.

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 TIP in addition to restitution include procedural rights and service rights must also be given to witnesses and victims, including: revictimization, health rehabilitation, social rehabilitation, social reintegration, repatriation. In theory, there are 2 (two) models of protection of witnesses and victims namely the service model and the procedural rights.

The model of protecting witnesses and victims in the form of a service model, in this case, services to victims of TIP are made a specific target in the framework of investigation, investigation and other law enforcement activities. So 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 TIP victims to be able to play an active role in the course of 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 has regulated the rights of witnesses and/or victims of TIP, both in the service model and procedural rights, namely as follows:

1. Article 18 regulates Revictimization, namely victims who commit criminal acts because they are forced by TIP perpetrators, cannot be criminalized;
2. Article 27 stipulates that TIP perpetrators will lose their right to collect debts or other agreements against victims, if the debts or other agreements are used for exploitation;
3. Article 33 stipulates that Reporters have the right to keep their names and addresses or other matters confidential if they provide the possibility of knowing the identity of the reporter;
4. Article 34 regulates that the reporter's information can be provided remotely through audio-visual communication devices;
5. Article 35 stipulates that Witnesses and/or victims have the right to be accompanied by advocates and/or other companions needed at all levels of examination;
6. Article 36 regulates 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;
7. Article 37 stipulates that Witnesses and/or victims can provide information in court without the presence of the defendant;
8. 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;
9. Articles 48 to 50 regulate the right to restitution;
10. Articles 51 and 52 regulate the provision of health rehabilitation services, social rehabilitation, repatriation, and social reintegration organized by Social Protection Homes or Trauma Centers.