Restitution Rights: Legal Protection for Victims of Human Trafficking Crimes

A. Introduction

Human Trafficking is a form of crime that is currently rampant in Indonesia. It is necessary to reflect together on the modus operandi of Human Trafficking, which targets low-income, less educated communities, and those from low social backgrounds by promising large incomes to the victims. The Indonesian National Police recorded that in 2023, there were 982 cases of Human Trafficking, an increase of 837 cases from 2022, which had 145 cases. Meanwhile, the number of Human Trafficking victims has also increased from 668 people in 2022 to 3,208 people in 2023.¹

This is further compounded by the increase in Human Trafficking cases in 2024, which based on public information from the Indonesian Ministry of Foreign Affairs regarding “Ferienjob,” involving a total of 1,047 student victims from 33 campuses in Indonesia. The modus operandi of Ferienjob is associated by agencies in Indonesia as a form of the “Kampus Merdeka Internship Program,” which in reality has no connection to the said program. This rampant Ferienjob is known as part-time work during holidays, aimed at filling the shortage of physical labor in various German companies and only intended to fill students’ semester breaks with physical work to earn extra money.²

Then, how does the state address legal protection for victims of Human Trafficking? Law Number 21 of 2007 concerning the Eradication of the Criminal Act of Trafficking in Persons (“Law No. 21/2007“) has been a breakthrough and legal umbrella for Human Trafficking practices that have persisted for years without end. Article 1 number 1 of Law No. 21/2007 defines Human Trafficking Crimes as “recruitment, transportation, harboring, sending, transfer, or receipt of a person by means of threat or use of force, abduction, incarceration, fraud, deception, the abuse of power or a position of vulnerability, debt bondage or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, whether committed within the country or crossborder, for the purpose of exploitation or which causes the exploitation of a person”³. The definition of Trafficking in Persons encompasses various elements that constitute the modus operandi in cases of Human Trafficking occurring in Indonesia.

It is important to emphasize that the enactment of Law No. 21/2007 serves as legal protection for victims of Human Trafficking, which can be explicitly seen based on Article 48 of Law No. 21/2007, which grants the right to Restitution to victims of Human Trafficking or their heirs.⁴ Furthermore, provisions regarding the right to Restitution as indemnification provided to the victim or their family by the convicted or third party have also been regulated in to Law Number 13 of 2006 concerning Witness and Victim Protection as amended by Law Number 31 of 2014 concerning amendment to Law Number 13 of 2006 concerning Witness and Victim Protection (“Law No. 31/2014“).⁵

Furthermore, regarding the technical aspects of submitting and examining applications for restitution, they are regulated in Government Regulation Number 7 of 2018 concerning the Provision of Compensation, Restitution, and Assistance to Witnesses and Victims as amended by Government Regulation Number 35 of 2020 concerning amendment to Government Regulation Number 7 of 2018 concerning the Provision of Compensation, Restitution, and Assistance to Witnesses and Victims (“Government Regulation No. 35/2020“) and Supreme Court Regulation Number 1 of 2022 concerning the Procedures for Completing Applications and Providing Restitution and Compensation to Victims of Crimes (“Supreme Court Regulation No. 1/2022“).

B. Discussion

B.1 Restitution rights for victims of Human Trafficking

Based on Government Regulation No. 35 of 2020, Restitution is an indemnification provided to the victim or their family by the convicted or a third party.⁶ As a note, Restitution is often equated with Compensation. However, there is a clear difference between Restitution and Compensation. Compensation, on the other hand, is an indemnification provided by the state when the convicted is unable to do so.⁷

Article 19 paragraph (1) of Government Regulation No. 35 of 2020 explicitly explains the forms Restitution that victims of criminal acts are entitled, namely:

(a) Indemnification for loss of wealth or income;
(b) Indemnification for harm suffered directly related to the crime; and/or
(c) Reimbursement of medical and/or psychological treatment costs.

Furthermore, in the Supreme Court Regulation No. 1/2022, there is an addition of Restitution forms in Article 4, namely other losses suffered by the victim as a result of the crime, including basic transportation costs, legal fees, or other expenses related to the legal process.⁸ The request to obtain Restitution is submitted and signed by the victim, their family, or their authorized representative in Indonesian language and submitted to the Head of the Court, either through the Public Prosecutor or through the The Witness and Victim Protection Agency (in Indonesia known as Lembaga Perlindungan Saksi dan Korban (LPSK)).⁹

Technical procedures for requesting Restitution based on Article 21 of Government Regulation No. 35 of 2020 and Article 5 of Supreme Court Regulation No. 1 of 2022 are as follows:

The most important aspect of filing a Restitution request is the non-extinguishment of the rights of the victim, heirs, and guardians to file a Civil Lawsuit in the event of:

(a) the Restitution request is rejected because the defendant is acquitted or released from legal prosecution; and
(b) the Restitution request is granted and the defendant is convicted, however, there are losses suffered by the victim that have not been requested for Restitution to the Court, or have been requested but not considered by the Court.¹¹

B.2. The Authority of LPSK in the Examination and Submission of Restitution Requests

As part of the authority of LPSK in examining Restitution requests submitted by victims/families/representatives, upon receiving the above-mentioned documents in full, LPSK immediately will conduct a substantive examination.¹² During this examination, LPSK may request statements from the victim/family/representative, as well as from the convicted of the criminal act.¹³ Concretely, LPSK also has the authority to assess indemnification in providing restitution.¹⁴ Then, the results of the Restitution request examination by LPSK will be determined by a Decision of LPSK, accompanied by its considerations (containing recommendations to grant or reject the Restitution request).¹⁵

Based on Government Regulation No. 35 of 2020 and Supreme Court Regulation No. 1 of 2022, Restitution requests can be submitted through LPSK before or after the court decision has obtained legal force. Therefore:

1. In the event that the request is submitted before the court decision obtains legal force, LPSK may submit the Restitution Request (along with the Decision of LPSK and its considerations¹⁶) to the Public Prosecutor to be included in the prosecution.
2. In the event that the request is submitted after the court decision has been read and obtained legal force, LPSK may submit the Restitution Request (along with the Decision of LPSK and its considerations) to the Court to obtain a Court Decree.¹⁷

As a form of implementation of the Court Decision in case of guilty verdict (if the Restitution Request is submitted before the Court Decision is read), as well as the Court Decree (if the Restitution Request is submitted after the Court Decision is read), the convicted shall comply with the Court Decision/Court Decree within 30 days from the date the copy of the Court Decision is received or the Court Decree is read/notified.¹⁸

B.3 The Technical Process of Accepting or Rejecting the Restitution Request

If the Public Prosecutor receives the Decision of LPSK regarding the Restitution Request before the case files are transferred to the Court, the Public Prosecutor must include the Request in the Indictment and insert the request file into the case files and promptly provide a copy to the Defendant or their legal representative.¹⁹ The Public Prosecutor is also obligated to include details regarding the Restitution Request in the Criminal Charges. On the other hand, to prove the losses suffered by the victims of Human Trafficking in court, the Public Prosecutor submits evidence during the trial to substantiate the Restitution request.²⁰ 

Upon reviewing the evidence presented by the Public Prosecutor, the Judge will examine the Restitution request file, assess the evidence, and consider it in the verdict.²¹ Normatively, based on the Law No. 21/2007, clear provisions regarding the implementation of Restitution as an obligation to be fulfilled by the Convict can be observed. This is because in the event that the Restitution is not implemented within the specified timeframe, the Public Prosecutor will actively instruct the Restitution Provider to fulfill their obligation within 14 days of receiving the Order Letter.²² If the Order Letter is still not complied with, the Public Prosecutor will seize the assets of the convicted and auction off their assets to fulfill the payment of Restitution.²³ If the convicted is not capable to pay the Restitution, they will be subjected to a substitute imprisonment for a maximum of 1 year.²⁴

B.4  Examples of Court Decisions that Have Granted and Rejected Restitution Requests to Victims of Human Trafficking

B.4.1. The verdict of the Cikarang District Court No. 592/Pid.Sus/2021/PN.Ckr (“Cikarang District Court Decision No. 592/2021”)

Referring to the Cikarang District Court Decision No. 592/2021, the panel of judges has granted Restitution rights to the victims of Human Trafficking by granting the Restitution request for each of the 2 victims with the following amounts:

(a) Victim A: IDR 34.669.000; and
(b) Victim B: IDR 28.941.150.

In the Cikarang District Court Decision No. 592/2021, it is clearly stated by the Witness, who is one of the Evaluators of Restitution for Crime victims from LPSK, that the calculation system for the Restitution amount involves thorough information gathering, data collection, and documentation regarding the Restitution request submitted by the victims. Based on the amount ​​submitted by the victims, LPSK will then conduct calculations and assessments of reasonableness. 

Furthermore, in the Public Prosecutor’s indictment, it is also included regarding the Restitution request arising from the actions of the convicted causing harm to the victim and them seeking protection from LPSK. Upon this request, LPSK subsequently issued a Restitution Assessment Decision by determining the indemnification amount in the form of Restitution that must be paid by the convicted. Thus, Government Regulation No. 35 of 2020 and Supreme Court Regulation No. 1 of 2022 are indeed applied in practice by LPSK in assessing the indemnification calculations submitted by the victims.

The panel of judges in the Cikarang District Court Decision No. 592/2021 has thoroughly considered the actions of the convicted, ultimately deciding that the convicted was proven legally and convincingly to have committed TPPO (Trafficking in Persons). On the other hand, the panel of judges had also carefully considered the Restitution request submitted by the Public Prosecutor in their indictment, taking into account the revealed legal facts and referring to Article 48 paragraph (1) of Law No. 21/2007 and Article 7A of Law No. 31/2014. Therefore, the victims were granted Restitution because they have suffered material and/or immaterial losses as a result of the actions of the convicted.

B.4.2. The verdict of the Cibinong District Court No. 359/Pid.Sus/2020/PN.Cbi (“Cibinong District Court Decision 359/2020”)

The request for Restitution rights for Human Trafficking victims based on the Cibinong District Court Decision No. 359/2020 was submitted by the Public Prosecutor in the indictment. The Public Prosecutor requested Restitution in the amount of IDR 22,300,000 to be paid by the convicted, a value that was assisted in formulation by the companions of the victims. However, despite the convicted was proven legally and convincingly to have committed Human Trafficking crime, the request for restitution for the Victim was not considered due to the following reasons:

1. During the trial, the Public Prosecutor was unable to demonstrate and provide evidence regarding the calculation of Restitution to the Human Trafficking victims amounting to Rp 22,300,000; and
2. Throughout the trial, the Public Prosecutor only presented 1 victim, while the other victims and the companions of the victims who helped formulate the value of the losses were not brought forward by the Public Prosecutor.

Based on the Cibinong District Court Decision No. 359/2020, it is evident that the submission of Restitution appears to have not been optimally submitted. One of the reasons for this, is the lack of clear regulations regarding the technical aspects of submitting Restitution requests beforehand.

2. Closing

Justice, utility, and legal certainty can only be consistently implemented when the applicable laws and the implementation of law enforcement are optimal, focusing not only on imprisonment for the convicted but also on fulfilling Restitution rights for victims.

Through Cikarang District Court Decision No. 592/2021, the Restitution request submitted by the Public Prosecutor in their indictment was well-considered, taking into account the revealed legal facts and the applicable laws. The Restitution request submitted by LPSK, and the issuance of the Restitution Assessment Decision by LPSK, represents a technical system that can be deemed very effective in proving concretely and tangibly the losses suffered by victims of Human Trafficking.

On the other hand, in the Cibinong District Court Decision No. 359/2020, the Restitution request was submitted by the Public Prosecutor without involving LPSK. Consequently, the Public Prosecutor only included the Restitution amount in the indictment without concretely proving where the Restitution request value originated from. Ideally, the Public Prosecutor should actively demonstrate the damages suffered by the victims of Human Trafficking.

The presence of Government Regulation No. 35/2020 and Supreme Court Regulation No. 1/2022 provides broader rights for victims to obtain Restitution, which can be filed before or after a final and binding court decision. Therefore, if the evidence regarding the Restitution calculation could not be clearly proven in court due to various reasons, the victim still retains the right to submit a Restitution request through LPSK. In regard to this, LPSK will then submit this request to the court to obtain a Court Decree. Additionally, victims of Human Trafficking does not lose their right to file a civil lawsuit to claim for indemnification as stipulated under Article 9 of Supreme Court Regulation No. 1/2022.

Restitution and the fulfillment of victims’ rights in the form of indemnification are crucial because Human Trafficking, as a crime, can lead to a cycle of poverty. The importance of providing Restitution to victims of Human Trafficking lies in the fact that if victims are not given redress for their rights and are simply reintegrated into society without recovering from their losses, there’s a risk they may become victims again due to their vulnerable situation. The eradication of TPPO can never be achieved without fulfilling the Restitution rights of victims who can clearly demonstrate their losses. This is because the vulnerable condition of victims upon their return to society surely can be exploited again by the convicted.

1. Tribrata News: "Police Chief Notes 982 Cases of Human Trafficking Throughout 2023”, https://tribratanews.sulut.polri.go.id/kapolri-catat-ada-982-kasus-tppo-di-sepanjang-2023/#:~:text=%E2%80%9CJumlah%20kejahatan%20TPPO%20di%202023,menjadi%203.208%20orang%20di%202023.
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2. Kompas.Com: "Foreign Ministry: 'Ferienjob' Official Program of the German Government, But Not an Educational Internship Program", https://nasional.kompas.com/read/2024/04/04/12532091/kemenlu-ferienjob-program-resmi-pemerintah-jerman-tapi-bukan-program-magang?page=all
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3. Article 1 number 1 of Law No. 21/2007 ↩︎
4. Article 48 of Law No. 21/2007. ↩︎
5. Article 1 number 11 of Law No. 31/2014 ↩︎
6. Article 1 number 5 of Government Regulation No. 35 of 2020. ↩︎
7. Article 1 number 4 of Government Regulation No. 35 of 2020. ↩︎
8. Article 4 Supreme Court Regulation No. 1/2022 ↩︎
9. Article 5 paragraph (4) Supreme Court Regulation No. 1/2022. ↩︎
10.  Article 21 of Government Regulation No. 35 of 2020 jo. Article 4 Supreme Court Regulation No. 1 of 2022. ↩︎
11. Article 9 Supreme Court Regulation No. 1 of 2022.
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12. Article 23 of Government Regulation No. 35 of 2020. ↩︎
13. Article 24 paragraph (1) and (2) of Government Regulation No. 35 of 2020. ↩︎
14.  Article 12A paragraph (1) letter j. UU 31/2014 ↩︎
15. Article 26 paragraph (1) and (2) of Government Regulation No. 35 of 2020 ↩︎
16. Article 27 of Government Regulation No. 35 of 2020 ↩︎
17. Article 28 jo. Article 31 of Government Regulation No. 35 of 2020. ↩︎
18.  Article 30 Supreme Court Regulation No. 1 of 2022. ↩︎
19. Article 8 paragraph (3) Supreme Court Regulation No. 1 of 2022 ↩︎
20. Article 8 paragraph (6) Supreme Court Regulation No. 1 of 2022 ↩︎
21. Article 8 paragraph (11) Supreme Court Regulation No. 1 of 2022 ↩︎
22. Article 30 paragraph (9) Supreme Court Regulation No. 1 of 2022 ↩︎
23. Article 30 paragraph (11) Supreme Court Regulation No. 1 of 2022. ↩︎
24. Article 50 paragraph (4) Law No 21/2007 ↩︎