MARDJONO REKSODIPUTRO (University of Indonesia) Some Notes on the Position of Victim Support Schemes in Indonesia (With an Special Interest on Victims of Financial Fraud) (Some Notes For Discussion) The 11 th Asian Postgraduate Course on Victimology and Victim Assistance 22 July 2011 At Fakultas Hukum Universitas Indonesia Jakarta 1

Some Legislation Concerning the Victim  Until 2006 there is no special law that gives the crime victims the right for compensation from the state or restitution from the offender.  However, in the Criminal Procedure Code (KUHAP-Kitab Undang-Undang Hukum Acara Pidana) of 1981 the victim of a crime is recognized as a party in the criminal process against the offender : a)the right to complain if either the police or the prosecutor does not continue to process the case against the offender (pra-peradilan); b)the right to ask the prosecutor to join in a civil suit for damages with the criminal charges to the offender (penggabungan perkara ganti kerugian).  Note: 1)A claim for compensation from the state is also possible, for a defendant who is found not guilty by the court and suffered unlawful conduct from the police; 2)In conditional sentencing, the court may order the offender to pay restitution to the victim as a condition of the sentence (Penal Code of 1918). 2

[Some Legislation … ]  Law no 8 of the year 1999 on Consumer Protection (Perlindungan Konsumen) Article 63 : [ paying damages to the victim ]  Law no 26 of the year 2000 on the Court of Human Rights (Pengadilan HAM) Article 35 (1): “A victim of grave human rights violation or his /her heirs is/are entitled to receive compensation, restitution and rehabilitation” compensation = to receive damages from the state; restitution = to receive damages from the offender.  Law no 15 of the year 2003 on Terrorism (Pemberantasan Tindak Pidana Terorisme) Article 36 : [ a victim or his/her heirs is/are entitled to receive compensation or restitution ]  Law no 23 of the year 2004 on Domestic Violence (Penghapusan Kekerasan Dalam Rumah Tangga – KDRT ) Article 10 : [a victim has the right to receive protection; medical attention; special handling to protect identity; a social counsellor and a legal counsellor] 3

4  Law no 21 of the year 2007 on Human Trafficking (Pemberantasan Tindak Pidana Perdagangan Orang) Article 48 : [ a victim or his/her heirs is/are entitled to receive restitution ]  Law no 32 of the year 2009 on the Protection and Management of the Environment(Perlindungan dan Pengelolaan Lingkungan Hidup) Article 87 (1): [ payment of damages to the victim ]  In addition, in 2006 a special law was enacted to pay attention to the fate of victims in the course of criminal justice procedure – attention was drawn to the plight of crime victims who were to become witnesses - Law no 13/2006 on the Protection of Witnesses and Victims (which also established an independent Commission).  Can we regard this law to be part of a victim support system or a victim compensation system ? [Some Legislation … ]

Victim Protection Mechanism  Law No 13 of the year 2006 on the Protection of Witnesses and Victims (Perlindungan Saksi dan Korban)  The main purpose of this law is to protect victims who act as witnesses;  One of the reasons stated is that the success of the trial of an offender is the existence of evidence and a witness - the victim as a witness is crucial for the case and many times witnesses are afraid or reluctant to appear before the police or in court – victims are regarded as the main source of information about crimes and offenders - they shoud not be re-victimized by the justice process.  An institution/commission is established to fulfill the purpose of this law – it is named “The Institution For The Protection of Witnesses and Victims” (Lembaga Perlindungan Saksi dan Korban – LPSK );  Article 7 : -A victim can through LPSK submit/apply to the court : a)(the right) for compensation in grave human rights violations; b)(the right) for restitution or damages (which is the responsibility of the offender) 5

(Victim Protection … )  The following are a.o. the rights also granted to a victim (article 5): a)protection for personal safety, safety of the family and property. and to be safe from any intimidation to act as a witness in his/her case; b)participation in choosing the procedure and form of protection and safety; c)to receive information about the development of the case; d)to receive information about the decision of the court; e)to receive information when the offender is released from prison; f)to receive a new identity; g)to receive a “new place to live” (tempat kediaman baru); h)to receive temporary living allowance, until his/her protection is ended. These rights are not automatically granted to the victim as a witness – the Commission (LPSK) will make the decision based on the merrit of the case. It is assumed that priority will also be determined by the availibility of the budget. 6

A Non-violent Crime - Fraud  Fraud is a non-violent crime – unlike violent crimes, they usually don’t get much attention from the media or the public;  More attention is given to violent crimes because it is considered to be committed against people – while the non-violent crimes are usually committed against property;  However, when there are “collective/multiple victims” in a fraud case, the media tends to cover it and gives it special attention. Celebrity cases are e.g. Maddox (with his Ponzi scheme); Enron and WorldCom (investment fraud thru the public stock exchance) – in Indonesia e,g. Global Bank; Century Bank; and Citibank.  What is needed is a law which provide for Victim Restitution for the financial and emotional suffering from fraud – especially when the fraud is a white-collar crime or a corporate crime ! 7

 The need for Victim Assistance (VA) and Victim Compensation (VC) programs – we have to enhance services provided to crime victims – the CJS must treat victims of crime with more respect and with special regard for the pain and loss they have suffered – VA = restitution and psychological help when appropriate; and VC = for those who are required to miss work and are economically handicapped.  Victim Impact Statements (VIS) = discription of the harm and suffering that a crime has caused victims and their survivors – LPSK should develop programs to meet the needs of victims in the CJS (based on actual needs as proven by studying VIS cllected systematically).  Braithwaite’s theory of reintegrative shaming in restorative justice : the criminal act is condemned – offenders are held accountable – participants are involved, and repentant offenders are encouraged to earn their way back to society. 8 ( Non-violent Crimes… ) (Suggestios for LPSK)

Fraud under the Indonesian Penal Code (KUHP)  Article 378 (Perbuatan Curang - Penipuan) – Deception – False Representation : “A person who,with the object of obtaining unlawful (melawan hukum) gain for himself or another, induces a person (menggerakkan orang), by assuming a false name or a false capacity, or by artful tricks (dengan tipu muslihat), or by a tissue of lies (rangkaian kebohongan), to surrender any property, incur a debt or renounce a claim, is guilty of false representation (penipuan) and liable to a term of imprisonment of not more than four years”  Article 372 (Penggelapan) – Embezzlement : “A person who, intentionally (dengan sengaja), appropriates (memiliki) unlawfully any property belonging (kepunyaan) in whole or in part to another (orang lain), and of which he has control (ada dalam kekuasaannya) other than as a result of a serious offense (bukan karena kejahatan), is guilty of embezzlement (penggelapan) and liable to a term of imprisonment of not more than four years or a fine of not more than [900 rupiahs] “ - Fraud can be distinguished from embezzlement on the basis of when the criminal intent was formed. 9

Restitution for Financial Fraud (Principle vs Problem)  Society should punish it wrongdoers, but should also insure that the offender is required, if possible, to restore the victim to his/her prior state of wellbeing – this principle is especially true for fraud victims which suffer “a financial nightmare” (pension money; savings;etc) – this is possible by the payment of restitution.  A problem is when the offender has spend the money and have no resources with which to repay victims – a legal problem is when the offender has place assets in the name of others (friends or family) or hidden the money in offshore accounts in tax heaven countries or countries who are unwilling to enter into an extradition agreement with Indonesia.  In Indonesia many fraud victims know from experience “that it is one thing to obtain a judgement in your favor; but quite another to enforce/collect the restitution “ 10

Possible Solutions ???  For offshore hidden “stolen money” of fraudelent transaction – recovering the money thru tracing of laundered money – an optimistic approach is the StAR (Stolen Asset Recovery) innitiative from UNCAC (anti-corruption convention).  For domestically hidden “stolen money” – the breakthrough is in the new money laundering act (UU no 8/2010 tentang Pencegahan dan Pemberantasan Tindak Pidana Pencucian Uang), with its provision of the “reversal of the burden of proof” - “civil action in rem” – “civil forfeiture” – and “in absentia court process”.  For cooperative offenders, the Restorative Justice Principle “to heal and put right the wrong” may also be a solution – however with collective victims the process of reconciling the conflicts between offender(s) and victims will not be easy – a consensus should be reach among the victims that the “retributive and revenge” approach is not suitable in the respective case. THANK YOU 11