Compensation for Victims of Criminal Act

It is interesting to observe the statement made by the criminal investigation chief of the National Police, Comr. Gen. Agus Andrianto, that money confiscated from illegal investment schemes can be returned to the victims.

Victims are advised to take charge of this matter by forming a community and appointing a legal representative who will inventory the victims' losses. Furthermore, once the community has been formed, the victims can demand the court to return all confiscated assets that originated from this crime to the victims’ community after the judge’s ruling.

Speaking about victims’ claims for compensation resulting from criminal prosecutions, as regulated in Article 98 of the Criminal Code Procedure (KUHAP), this actually applies not only to cases involving illegal investments, but also all criminal acts that causes harm to other people (victims).

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In early March 2022, the Supreme Court (MA) issued Supreme Court Regulation (Perma) No. 1/2022 concerning procedures for completing applications and provisioning restitution and compensation to victims of criminal acts. However, this regulation applies only to certain criminal acts, including crimes against children, gross violations of human rights, terrorism, trafficking in persons, racial and ethnic discrimination, as well as other crimes as determined by the Witness and Victim Protection Agency (LPSK).

Learning from a valuable lesson from the case of First Travel, for which the Supreme Court's decision in the criminal fraud and money laundering case actually stated that the assets confiscated from the crime were confiscated for the state, this has disturbed the public's sense of justice. For this reason, a legal solution is needed as a breakthrough.

Maximizing the KUHAP

The old paradigm that still “separates” the absolute competence of the criminal and civil courts now needs to be “reformed” in a more progressive way (restatement). The reason is that such rigidity will only delay justice for the victims of criminal acts, so they are unable to immediately recover their losses.

It is also time to settle criminal cases that incur losses to victims through an interdisciplinary approach, namely a hybrid of criminal and civil procedures.

According to Douglas W. Vick, as cited by Herlambang P Wiratraman and Widodo D Putro, the monodisciplinary approach clearly has its limitations, especially in responding to the complex problems of a group.

In the context of corruption, Article 35 of the United Nations Convention Against Corruption (UNCAC) even obliges Indonesia, as a party to the convention, to take the necessary actions according to the principles of its national laws to ensure that parties who suffer losses as a result of acts of corruption have the right to file lawsuits against those responsible to be compensated for their losses.

For this reason, while waiting for the deliberation and ratification of the law on the confiscation of criminal proceeds, the government can maximize the provisions in Chapter XIII of the KUHAP, from articles 98 to 101, which regulates combining claims for compensation, which can be done if an action that forms the basis of a criminal indictment harms another person.

Furthermore, the panel of criminal court judges, at the request of the victim or his/her lawyer through the public prosecutor, may determine the combining of claims for compensation in prosecuting a crime.

To put it simply, this mechanism is actually (civil) compensation that is combined with an indictment of a criminal case that has harmed a victim.

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Therefore, the government needs to consider issuing a government regulation (PP) to implement KUHAP articles 98 to 101, which more comprehensively regulate the technical aspects of combining claims for compensation.

No less important, and which can be "capital" for recovering victims' losses, is investigators applying forced confiscation to take over or store movable, immovable, tangible, or intangible objects for the purpose of evidence in an investigation, prosecution and trial (KUHAP Article 1, point 16).

This confiscation of criminal proceeds carried out by law enforcers has a very strong position, even though the same type of confiscation is carried out in cases of bankruptcy. The confiscated items can be in the form of: one, the assets used to commit criminal acts (instrumentum sceleris); two, confiscation of objects related to criminal acts (objectum sceleris); and three, the confiscation of the proceeds from a criminal act (fructum sceleris).

It is the final form of confiscation, or fructum sceleris, that judges must decide, with the items/goods returned to the person most entitled to it, in this case the victim of a crime according to the provisions of KUHAP Article 46.

With the news that the Draft Law (RUU) on the Civil Code Procedure has been included in 13 bills to be discussed by the House of Representatives (DPR) during its fourth session this year, the writer hopes that this government regulation also contains the technical aspects for handing down a declaratory judgment on, for example, who is entitled to the confiscated items and how it will be distributed, because the dictum of the decision is actually what is needed to recover the losses of crime victims.

Pessimism that combining the claims for compensation and lawsuits for crimes will not fully recover the losses of crime victims must serve as strong motivation to find the best formulation of combining criminal and civil procedures.

Support for ‘asset recovery’

The efforts of President Joko Widodo to push for ratifying the Bill on Confiscation of Criminal Proceeds in his directions during World Anti-Corruption Day, organized by the Corruption Eradication Commission (KPK) in December 2021, have given a glimmer of hope for enforcing the law across the archipelago. This is because this bill concerns not only corruption, but also for the proceeds of crimes that are punishable by four years or more in prison.

Interestingly, the state can confiscate criminal proceeds based on a court ruling (non-conviction), and not just as punishment for the perpetrator of a criminal act, for example, in the event that a perpetrator dies, flees, is permanently incapacitated, the case cannot be brought to trial, or in a not guilty verdict (onts lag van alle rechtsvervolging).

Don't let delayed justice bring more harm to the victims and the public. Justice delayed is justice denied.

Moreover, the process of following up on a prosecutor’s request for confiscating criminal proceeds is carried out on assets obtained directly or indirectly from criminal acts, including assets that have been converted into the personal property of the perpetrators or other people, as is often the case with perpetrators of money laundering.

This investigative model, which is identical to the civil justice system, is preceded by tracing strong suspicions on the origin or existence of criminal proceeds and assets, which is then followed by blocking and confiscating those assets by state investigators or prosecutors, while respecting the right of a third party to file an objection of goodwill with a district court against the request to confiscate assets.

The consideration is to prevent the victims from having to struggle with filing a civil lawsuit from scratch immediately after a permanent ruling on a criminal case. Moreover, the criminals are considered to have drawn “fresh blood” from the proceeds of their crimes to “finance” a legal battle that will take years. Don't let delayed justice bring more harm to the victims and the public. Justice delayed is justice denied, to quote William E. Gladstone.

ARSIP PRIBADI

Albert Aries

Albert Aries, Lecturer at Trisakti University law school and member of the Indonesian Society for Criminal Law and Criminology (MAHUPIKI)

This article was translated by Kurniawan Siswo.