restitution compensation abdul haris semendawai
(2)
Restorative justice underscores the need for
victims' harms to be repaired to the extent
possible.
Compensation and restitution are two ways this
may be done.
(3)
TERMINOLOGY OF
(4)
•
Any certain crimes would result in losses to
victims. Victims of crime must bear losses due to
crime materially or immaterially. But the
completion of criminal proceedings, often lead
victims to receive inadequate legal protection.
Compensation is a kind of victim’s protection as
part of human’s rights. They also have rights to
obtain compensation and restitution
.
•
Compensation and restitution are payments
made to victims of crimes which are intended
either to remedy the current situation or to
compensate for the past losses (for instance loss
of life) which cannot be remedied.
(5)
•
In society there is a need to measures against
those who jeopardize the individual interests. The
awareness that harm the interests of citizens, is
also a violation of the public interest
. I
n such a
way as to end the acts of revenge which called
the principle of reciprocity or ius talionis (law of
retaliation). It is
agreed by the community that
someone who has caused harm to the interests
of others should pay compensation to people and
society
.
According to the LHC Hulsman, this
practice has lasted from the Middle Ages until the
13th century, where the majority of human
conflicts resolved in compensation.
(6)
Restitution
The term "restitution" in the criminal justice system
means payment by an offender to the victim for the
harm caused by the offender's wrongful acts.
Courts have the authority to order convicted
offenders to pay restitution to victims as part of
their sentences. Approximately one-third of states,
courts are required to order restitution to victims in
cases involving certain types of crimes, typically
(7)
•
Restitution can cover any out-of-pocket losses
directly relating to the crime, including:
a. medical expenses,
b. therapy costs,
c. prescription charges,
d. counseling costs,
e. lost wages,
f. expenses related to participating in the criminal
justice process (such as travel costs, child care
expenses, etc.),
g. lost or damaged property,
h. insurance deductibles,
i. crime-scene clean up, or any other expense that
resulted directly from the crime.
(8)
Restitution will not cover such things as pain
and suffering or emotional distress, only
damages that are easy to prove-things for which
a victim might have a bill or a receipt.
(9)
History
•
Code of
Hammurabi
in the 18
thcentury included provisions
for restitution.
•
In Saxon, England, a legal system developed which provided
for restitution to the victim’s family and to King for
violating his/her peace.
•
Modern restitution can be traced to the criminal laws that
authorized suspended sentences and the use of probation.
•
By the late 1930s, restitution could be ordered as a
condition of probation.
•
In the late 1970s and 1980s, victims’ movement began to
argue that restitution should be viewed as protecting
victims from suffering financial hardship
(10)
Types of Restitution
•
Financial restitution
Most commonly, requires offender to make payments directly to
the actual victim of the crime.
•
Financial-community restitution.
Requires offender to make payments to a community agency such
as a restitution center, which then pays the victim.
•
Individual service restitution
Requires the offender to perform a service for the actual victim
•
Community service restitution
Requires the offender to perform some beneficial service to the
community
•
Restitution fines
Collected and deposited in the state’s crime victim compensation
fund
(11)
Problems with Restitution
•
The system of restitution are usually overworked
and lack of financial resources.
•
It is still unclear regarding the division of work to
collect and disburse funds for the victim.
•
Lack of communication amongst agencies and
between agencies and victims.
•
Victims feel dissatisfied with the process.
•
Difficulty in deciding which victims of crime to get
the restitution.
(12)
The difference between restitution and civil
damages
•
Restitution, as noted above, is ordered by a criminal court after the
offender has been found guilty. Civil damages are ordered when
someone has won a lawsuit in civil court. Victims of crime can
obtain both restitution and civil damages. A victim can sue an
offender even when the offender has been ordered to pay
restitution. Civil damages can include losses not covered by
restitution, such as payment for pain and suffering, payment for
intentional infliction of emotional distress, and even punitive
damages-damages imposed just to punish the defendant. However,
as in cases where the victim receives crime victim compensation
and court-ordered restitution, victims cannot collect twice for the
same loss. Usually a civil judgment is decreased by the amount of
(13)
Increasing the likelihood that restitution will be
ordered
• Victims can do two things to increase the likelihood that restitution will be ordered
in their case: gather information about their financial loss, and request that
restitution be ordered.
• To increase the chances that restitution will be ordered, victims should make sure
their victim impact statement includes a summary of the out-of-pocket expenses resulting from the crime. 1 The prosecutor's office may have financial impact forms that can help victims think about the possible losses that could be covered by
restitution.
• Victims should also tell prosecutors early in the process that restitution is important
to them, so that prosecutors can be prepared to request restitution as part of any plea agreement, sentence, or condition of probation. If victims have the opportunity
to address the court at the time a plea agreement is presented or at sentencing, they should specifically describe the financial impact of the crime and, if permitted in that state, request restitution. (In some states, a victim's in-court statement must be
limited to describing the impact of the offense and cannot include any opinion about the sentence that should be given, including restitution. In those states, the
(14)
Courts may order full or partial restitution
•
When courts order restitution, they will not
consider at the victim's losses alone but also at
the offender's ability to pay. In some States, the
court may reduce the total amount of restitution
ordered if the offender is unlikely to be able to
pay that amount. In other States, courts will
order the offender to pay for the full amount of
the loss, but then set a payment schedule based
on the offender's finances, which may only be a
minimal amount per month.
(15)
Collecting restitution
• Collection of restitution is often limited by the offender's ability to pay. As a
result, many victims wait for many years before they receive any restitution, and they might never receive the full amount of restitution ordered.
• Collection also depends on enforcement of the court's order of restitution, either
by the criminal justice system or the victim. There are many laws and procedures
used to make sure the offender pays as ordered.
• For example, where payment of restitution is made a condition of probation or
parole, the probation or parole officer must monitor whether payments are being made on time. The victim may help provide this information to the probation or
parole officer. If the offender is about to be released from probation or parole,
but has not paid restitution as ordered, this information must be conveyed to the court or parole board. Victims who have not received restitution as ordered
should ask the probation or parole officer how this information will be provided to the court or parole board. In some states, probation or parole can be extended
(16)
•
In those States with prison work programs, restitution payments are
typically collected out of the wages of those programs. Some states
collect restitution from state income tax refunds, prisoner accounts,
lottery winnings, or damage awards from lawsuits against the prison.
•
Where the offender has not paid restitution as ordered-has
"defaulted" in payment-restitution often can be collected by the same
methods used to enforce other court judgments, such as attachments
of assets or garnishment of wages. In some states, the victim is
authorized to take these actions; in other states, enforcement is up to
the prosecutor, the court, or another official.
(17)
•
Many states provide that restitution orders become
civil judgments. This expands the ability of victims to
collect restitution and also means the orders can stay
in effect for many years, typically ten to twenty years.
In many jurisdictions, civil judgments can be renewed,
so they can stay in effect even longer. During that
time, the offender's financial circumstances may
change: he or she may have inherited property, won a
legal judgment, or become employed. Depending on
the state, the civil judgment may be enforceable
immediately, or enforceable when the offender
defaults on payment, or enforceable only after the
criminal justice process is completed and the offender
has been released from probation, prison, or parole. A
victim may need to hire an attorney to help enforce the
civil judgment.
(18)
The difference between restitution
and compensation
• While restitution is court-ordered payment from a convicted offender, crime victim
compensation is a state government program that pays many of the out-of-pocket expenses of victims of violent crime even when there is no arrest or prosecution.
Ordinarily, to be eligible for compensation the victim is required to report the offense within a certain amount of time, cooperate in the investigation and prosecution, and file an application within a set time. The expenses covered by
compensation vary and are usually set by state law. All compensation programs
cover medical expenses, most cover counseling, and very few cover any property loss.
• In comparison, restitution can only be ordered in cases where someone has been
convicted. However, restitution can be ordered in almost any case (although
courts may be required to order it only for certain offenses), and can be ordered for a wider variety of losses, including property loss.
• A victim cannot collect both compensation and restitution for the same losses.
Where compensation has already paid for some of the victim's losses, a court may order the offender to reimburse the state compensation program and order the
(19)
Compensation
•
Victim compensation is a direct payment to, or on
behalf of, a crime victim for crime-related
expenses such as unpaid medical bills, mental
health counseling, funeral costs, and lost wages
•
Victims applying for compensation must comply
with certain requirements including reporting the
crime and filing claims by certain deadlines
•
Once all pertinent information is gathered, the
agency will decide whether to make an award,
and the monetary value of that award to the
victim
(20)
Compensation -Eligibility
•
Not all victims of every crime are eligible for state
compensation.
•
In general, the majority of states limit compensation to
victims who suffered injuries as a result of the criminal
conduct of another and to survivors of homicides
•
Some states require some sort of physical injury and
others allow for physical or mental injuries
•
Most states allow the parents of deceased victims to
collect compensation
•
Most states disallow some classes of persons from
eligibility such as firefighters and police officers and
prisoners
(21)
•
Compensation and restitution for serious
victims of human rights violations, in
international law said that the victim’s of gross
human rights violations have right to know,
rights to justice and rights to reparation.
•
Based on these three rights, victims and their
families also have the right to know the truth
or to know the truth about what happened, to
have access to effective remedies, and also
have the right to justice through prosecution
and punishment of the perpetrators.
(22)
•
Currently the principle of indemnity has been replaced with the
concept of public punishment, where the penalty is no longer
imposed (determined) by individuals who are victims, but by the
public (State).
•
The State has an obligation to prosecute and adequately punish
perpetrators and not granting amnesty to the officers or agents of
the State, until they were sued in the courts. Countries are also
obliged to provide healing to the victims
•
A country have obligation to provide recovery and must ensure that
domestic law provides at least the same standard of protection to
what became an international responsibility or liability. States must
give or provide to victims of human rights violations or violations of
the laws of war with the effective and equal access to justice and
should also provide an effective remedy or victims, including
(23)
•
The obligation to provide reparations to victims is an
unnecessary liability associated with the presence or
absence of judicial (courts). This means that reparations to
the victims of violations of human rights have the right to a
good recovery are responsible to justice or not. This is
consistent with the definition of victims of human rights
that a person can be regarded as victims, regardless of
whether the perpetrators identified or is not successful, or
not arrested, prosecuted or not, and regardless of the
fraternal relations between the victims with the
perpetrators. Therefore, it is a basic principle that what is
known as the victim cannot be affected if the culprit cannot
be identified. According to international law, the victim
called if their rights are violated. When a crime or violence
occur, then it is when the person is to obtain the status of
victim.
(24)
•
Genocide and crimes against humanity are crimes that fall
into the category of extraordinary crime. The occurrence of
such crimes raised the obligation of the State to make
reparation for the victims. The obligation to make
reparation to the victims is the responsibility of the
countries that have been mandated on various human
rights instruments and reaffirmed in decisions (case law) of
the committees of international and regional human rights.
Obligations of State responsibility for violations of
international human rights law allows individuals or groups
who have been victims in the regions of the country to
receive effective treatment of legal and equitable remedies
in accordance with international law.
(25)
•
One of the important instruments, which became
the basis for the obligation of reparation for victims
is the Basic Principles and Guidelines on the Right to
Remedy and Reparation for Victims of Violations of
International Human Rights and Humanitarian Law,
1995) ,
Declaration of Basic principles of Justice for
Victims of Crime and Abuse Power, 1 September
1985 of UN Declarations No. A/Res/40/34, 1985
and
Rome Statute of the International Criminal
Court, July 17
th1998.
•
Based on the
Rome Statute of the International
Criminal Court, Article 75.
It is confirms that the
existence of guarantees for the victims in obtaining
material restitution and immaterial.
(26)
•
According to the stipulation on
Basic Principles
and Guidelines on the Right to a Remedy and
Reparation for Victims of Violations of
International Human Rights and Humanitarian
Law,
stated that the victims were given the
right to reparation , that is:
a. Restitution;
b. Compensation;
c. Rehabilitation;
d. Satisfaction;
(27)
• As for other forms of recovery for victims proposed by Theo van Boven, based on
his Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms”, July 2nd
1993, as follows:
1. Restitution must be to restore, to the extent possible, the situation of the victim prior to the violation of human rights. Restitution requires, inter alia, the
restoration of the rights of liberty, citizenship or residence, employment or property.
2. compensation will be granted for any damage that economically it can be estimated for the value of human rights violations, such as :
a. physical and mental damage; b. pain suffering and distress;
c. missed opportunities including education;
d. loss of livelihoods and the ability to earn a living; e. loss of property or business, including lost profits; f. loss of reputation or dignity;
g. reasonable costs and expenses for legal assistance or expertise to obtain recovery. 3. Rehabilitation should be provided, which includes legal services, psychological,
medical care, and services or other treatments, as well as action to restore the dignity and reputation for the victim.
(28)
4
. The presence or provide satisfaction and guarantee that such
actions would not be repeated, where the front, which includes :
a.the termination of an ongoing violation;
b.verification of the facts and the truth fully and openly;
c.decision that was announced in the interests of victims;
d.apology, including public acknowledgment of the facts and
acceptance of responsibility;
e.submitted to the court those persons responsible for violations;
f. warning and giving residence to the victims;
g.the inclusion of an accurate account of human rights violations in
educational curricula and training materials;
5 . Prevent the recurrence of violations, among others, by the way :
a.ensure effective civilian control over military and security forces.
b.Restrict the jurisdiction of martial-court;
c.strengthening the independence of the judiciary;
d.protect the legal profession and human rights workers.
e.Provide training in human rights for all sectors of society, particularly
on military and security forces and law enforcement.
(29)
Form of reparations to victims of international human rights instruments
No Concerning Forms
1. Restitution a. Should be given to re-establish, as far as possible, the situation for victims of
violations of human rights before the law.
b. Restitution requires, inter alia, the restoration of freedom, citizenship or residence, employment or any property.
2. Compensation a. The compensation shall be determined by the damage that economically we
can estimate its value, derived from violations of human rights, such as:
1. physical and mental damage; 2. pain suffering and distress;
3. missed opportunities including education;
4. loss of livelihoods and the ability to earn a living; 5. loss of property or business, including lost profits; 6. loss of reputation or dignity;
7. reasonable costs and expenses for legal assistance or expertise to obtain recovery
(30)
Bentuk reparasi kepada korban Instrumen HAM Internasional
No Concerning Forms
3. Rehabilitation s
a. action to restore the dignity and reputation of the victim's good name;
b. must be provided covering -Legal Services
-Psychology, medical treatment and any other services or treatment 4. Satisfaction
Non
Repetition Guarantee
a. Measures to address including the recognition of the public that it is really the responsibility of the State, as well as in General apologies from officials at the highest levels.
b. The presence or provide satisfaction and guarantee that such actions will not reoccur in the future, covering, among other:
the termination of an ongoing violation
verification of the facts and the truth is fully open
decision that was announced in the interests of victims
The apology, including public acknowledgement of the facts and responsibilities.
(31)
THE ARRANGEMENTS OF
COMPENSATION AND RESTITUTION
IN INDONESIA POSITIVE LAW
(32)
1.The Criminal Procedure Code (KUHAP) of 1981
•
Article 1 point 22:
“Restitution is the right for the fulfillment of demands in
exchange for a sum of money because of illegal arrested,
detained, prosecuted or tried by law or wrong targeted to
the person or law that applied provided in this Act.”
•
Article 2 point 23 :
“Rehabilitations is right to recover of the capabilities, status
and dignity given to the level of investigation, prosecution
or the judiciary because of illegal arrested, detained,
prosecuted or by mistake on a person or law that applied in
this Act”
(33)
•
In the criminal code, the compensation granted
to victims is not satisfied, because of
inappropriate provisions referred to in article 98,
paragraph 1, which States that third parties who
have suffered losses, and this can be understood
as a victim, may submit a claim for liability fusion.
•
Article 98 point 1 :
“If an act which became the basis of the
accusation in an investigation of the criminal case
by the damage that causes State Court for others,
then the Chief of Court, at the request of the
perpetrator can be set to join the prosecution
cases of grievances
”
(34)
•
However, compensation and restitution for victims of gross
violations of human rights are within the " compensation ". This is
seen in the definition of compensation and restitution in the Law
No. 26 of the year 2000 and or Gov. Reg. No. 3 of the year 2002.
Although the right to rehabilitation Act 26 of the year 2000 shows
the victims, and not against the suspects or accused as stipulated in
the code of criminal procedure.
•
Article 1 on Gov. Reg No. 3 of the year 2002 concerning about
compensation, restitution and rehabilitation:
“Compensation is the compensation awarded by the state because
the actors are not able to provide full restitution of responsibility
.
”
“Restitution is compensation provided to victims or their families by
the offender or third parties may include the return of property,
damages for loss or suffering or reimbursement for certain actions
”
“
Rehabilitation is to restore to its original position, such as honor,
good name, title or other rights
”
(35)
•
Restitution to victims in the Criminal Procedure Code does
not explain in detail about the form of compensation to
victims
.
It is seen that the arrangements regarding the
compensation of victims in the Criminal Procedure Code
only "attached" to the setting on the incorporation of legal
action in criminal cases
.
However, it is understood that the
losses of the victims of crime in the code of criminal
procedure, which may only be requested in an application
for reimbursement by the loss of material and the
immaterial is not covering the losses of the victims to sue
in civil society
.
Therefore, the settings in the code of
criminal procedure, the protection of the victims of their
rights are not receiving sufficient protection configuration
in comparison with the rights of suspects, accused and
convicted
.
“Yahya Harahap, The discussion of the issues and the application of the
Criminal Procedure Code, Sinar Grafika Jakarta, 2003, hal. 81.”
(36)
2. Law no 26 of the year 2000 on The Court of Human
Rights And Gov. Reg. No. 3 of the year 2002
•
Article 35 point 1 :
“All the victims of human rights violations are serious
and or their heirs may obtain compensation, restitution
and rehabilitation”.
•
Terms of Victims on Gov. Reg. no. 3 of the year 2002:
“Victim is a person or group of people who suffer from
such physical, mental and emotional, financial loss or
experience denial, reduction or the expropriation of
their basic rights, as a result of gross violations of
human rights, including the victim's heirs are.”
(37)
•
The rights of the victims, recognized in national legal
systems of the Law No 26/2000, regarding Human
Right's court. This Act provide other forms of
compensation to the victims of gross violations of
human rights as set out in the definition of the
restoration. This is called restoration to the victim or
his/her family, which includes the return of the goods,
the payment of damages for the loss or suffering or the
reimbursement of certain actions. These forms of
compensation, if borne by the State of the terminology
used is "Compensation", which means that other forms
of compensation to victims in the Law No 26 of the
(38)
•
Based on the above provisions, compensation to
victims of serious human rights violations
imposed on the two sides of the perpetrator and
the state. The perpetrators of the offence
charged or any third party to compensate the
victim, and that is what is defined as " restitution
". While in compensation, compensation of load
to the victims was taken by the Government
when the perpetrator or a third party cannot
afford of paying full compensation to victims.
With this provision, the concept of State
responsibility for victims of crime (serious
violations of human rights) emerged.
(39)
3. Law no 15 of the year 2003 on Terrorism
•
Article 36,
“
a victim or his/her heirs is/are entitled to receive
compensation or restitution
”
4. Law no. 23 of the year 2004 on Domestic Violence
•
Article 10,
“
a victim has the right to receive protection, medical
attention, special handling to protect identity, a social
counselor and a legal counselor
”
5. Law no. 21 of the year 2007 on Human Trafficking
•
Article 48
“a victim or his/her heirs is/are entitled to receive
restitution”
(40)
8. Law no. 13 of the year 2006 on Witness and Victims Protection
•
Restitution may be provided to all victims of the crime that occurred,
and are not limited to the victims of gross violations of human rights
as the right to compensation.
•
Article 7 :
1. The Victims through the LPSK has rights to ask to the trial for:
a. Rights of compensation on the cases of gross human rights
violations;
b. Rights of restitution or compensation is the responsibility of the
perpetrator.
(41)
•
In applications for compensation and
restitution as set forth in Article 7 of Law No.
13 of 2006, further stipulated in Government
Regulation No. 44 of the year 2008 on
Restitution Award of Compensation and
Assistance to Witnesses and Victims
(42)
9. Government Regulation No. 44 of the year 2008 on
Restitution Award of Compensation and Assistance
to Witnesses and Victims
•
Article 3 :
“Filing Compensation can be done at the time of the
investigation or gross human rights violations prior
to reading the claim by the Attorney General”
•
Article 21 :
“Submission of restitution can be made before or
after the offender was found guilty by a court
decision which has obtained a legally binding
decision.”
(43)
•
The settings in the Law No. 13/2006 is a bit
different from the Law No. 26/2000 on Human
Rights Court which also provides the setting
for the right to compensation and restitution,
and rehabilitation to victims of gross human
rights violations. For those implementation,
the State has issued Government Regulation
(PP) No. 3/ 2002 on Compensation, Restitution
and Rehabilitation of Victims of Gross Human
(44)
The comparison of national regulations concerning compensation restitution
No Regulations Concerning Note
1. Law No. 8 /
1981
1.The Criminal Procedure Code (KUHAP)
1. Government compensation to an accused, suspect or convicted of arrested, detained, charged and prosecuted or subjected to other actions, without any reason based on law or by mistake on a person or applicable law.
2. Rehabilitation for persons as the Court or off be freed from all charges, in which the decision was legally binding.
3. criminal cases that cause harm to others can be set for the merger of the cases of civil liability.
2. Law No. 26 of
2000, Human
Rights Court
Regulates the right to compensation, restitution, and rehabilitation of victims (KRR) human rights violations
• Gross human rights violations based on Law no. 26 of 2000 is the crime of genocide and crimes against humanity. See article 7 of Law No. 26 Year 2000 on Human Rights Court.
• Each of the victims or their heirs as a result of the criminal acts of terrorism, have the right to compensation or damages.
3. Gov. Reg. No. 3 of 2002
restitution,
compensation and rehabilitation for victims of severe human rights violations
1. Regulate the procedures for granting weight CRR (Compensation, Restitution, Rehabilitation) victims human rights violations
2. regulating the types and amounts of CRR 3. governing parties are obligated to pay CRR
(45)
The comparison of national regulations concerning compensation restitution
No Regulations Concerning Note
4. Law No. 30 of 2002 Corruption Eradication Commission (KPK)
Regulates the right of someone who has suffered harm as a result of the investigation, the investigations and prosecutions conducted by the Commission to claim rehabilitation and/or compensation.
5. Law No. 13 of 2006 Witness and Victims Protection 1. regulates the right to compensation in cases of serious
violations of human rights.
2. Regulates the right to return or compensation, which is the responsibility of the perpetrators of criminal acts. 6. Gov. Reg. No. 44 of
2008
Restitution award of compensation and assistance to witnesses and victims
1. Regulate the provision of compensation within the statement of claim filed by the victim or his trustee family on Human Rights by the LPSK;
2. Regulate the provision of restitution in a petition filed by the victim, family, or his trustee to the District Court to examine, hear and decide criminal acts of the Agency;
3. Procedures for providing assistance to victims and witnesses, in the form of medical care and psycho-social rehabilitation.
(46)
THE PROVIDING MECHANISM OF
COMPENSATION AND RESTITUTION
(47)
1. The Criminal Procedure Code (KUHAP)
•
The mechanism of the Criminal Procedure Code in fulfilling the rights of
victims to use the mechanism to seek redress criminal cases merging with
loss of claims.
•
Criminal Procedure Code, Article 98 (1) provides that in a criminal case
that caused harm to others then the chairman of the court at the request
of the person is able to establish compensation case to the case.
•
Article 98 point 1 :
“
If the Act that formed the basis for the indictment of a criminal
investigation cases the reason for the Court of the State causing harm to
other people, the chairman of court, hearing at the request of that person
can be established together in a criminal case on compensation
”.
•
Article 95 point 3, provides that the filing of claims for compensation filed
a suspect, accused person, defendant or the heirs to the Court with
jurisdiction over the case. Further, subject to the decision of compensation
in the form definition (Article 96 KUHAP)
(48)
Law No 26 of the year 2000 & Gov. Reg. No. 3 of the
year 2002
•
In addition to the mechanism of the Criminal
Procedure Code, Law no. 26 In 2000, regulations
regarding the procedures for awarding compensation,
restitution and rehabilitation further stipulated in
Government Regulation (PP) No. 3 of 2002 which also
provides a mechanism or procedure for compensation,
restitution and rehabilitation for victims of gross
human rights violations.
•
However, provisions in the Gov. Reg. is a setting that
only refers to the implementation of compensation and
restitution after the court ruling that the
implementation of "compensation" verdict and
"restitution" to victims.
(49)
Law No. 13 of the year 2006
•
Article 7 point (1)
“The victims through the Witness and Victims Protection
Agency (Agency) the right to bring to justice the right to
compensation or restitution.”
•
This provision raises a new mechanism in the filing
procedure right to compensation or restitution which the
Agency's involvement in the filing procedure.
•
First, that punitive damages (compensation and restitution)
may be lodged by the victim through an agency;
•
And the other perception, the victim may sue for
compensation through the Agency, and can also be used to
compensate for the other procedures, such as the code of
criminal procedure.
(50)
Gov. Reg. No. 44/2008
•
Regulated the mechanism or procedure for
the compensation of victims of gross
violations of human rights and reparation for
victims of crime.
(51)
The Compensation Mechanism
1. In compensation for victims of gross violations of human rights, the petition filed by the family compensation of victims or their lawyers with special powers to the Court of Human Rights through the Agency's determination, where the filing can be done when an investigation or prior violations of human rights violation charges read out by the Public Prosecutor.
2. These provisions also apply to applications filed after the gross remuneration human rights tribunal has obtained permanent legal force.
3. In the case under examination request Compensation Board believes should be done together with the major cases of human rights violations are severe, the application is submitted to the Attorney General.
(52)
The Compensation Mechanism
4. Prosecutor demands to include the request in its decision and the Agency
consider Compensation to the Court's decision, that the human rights court then gave quotes to provide compensation to the relevant government agencies in accordance with the injunction.
5. In the implementation of the human rights court ruling on compensation is being implemented in phases, where each phase or delay in implementation should be brought to the attention of the victims, their families or their proxies to the
human rights court, which decided to many petitions or compensation.
Implementation of the decisions referred to the Attorney-General in accordance with the provisions of the legislation.
(53)
The Restitution Mechanism
1. When providing restitution to victims, ensuring the restitution of the statement of claim filed by the victims, their families or their proxies with special power of Attorney in court authority to examine, hear and decide criminal acts through the Agency.
2. If the application for restitution made pursuant to the decision of the Court, who received permanent legal force, and convicted criminals, LPSK to submit the
request together with decision and care in the District Court.
3. In the case of the request for restitution submitted before the charges was read, LPSK application along with the decisions and deliberations of the Prosecutor's Office, which was then in demand by the public prosecutor's Office said the
request for refund with the decision and discretion for a court ruling later copies of the Court shall be presented by the Agency of victims, members of their
(1)
Law No 26 of the year 2000 & Gov. Reg. No. 3 of the
year 2002
•
In addition to the mechanism of the Criminal
Procedure Code, Law no. 26 In 2000, regulations
regarding the procedures for awarding compensation,
restitution and rehabilitation further stipulated in
Government Regulation (PP) No. 3 of 2002 which also
provides a mechanism or procedure for compensation,
restitution and rehabilitation for victims of gross
human rights violations.
•
However, provisions in the Gov. Reg. is a setting that
only refers to the implementation of compensation and
restitution after the court ruling that the
implementation of "compensation" verdict and
"restitution" to victims.
(2)
Law No. 13 of the year 2006
•
Article 7 point (1)
“The victims through the Witness and Victims Protection
Agency (Agency) the right to bring to justice the right to
compensation or restitution.”
•
This provision raises a new mechanism in the filing
procedure right to compensation or restitution which the
Agency's involvement in the filing procedure.
•
First, that punitive damages (compensation and restitution)
may be lodged by the victim through an agency;
•
And the other perception, the victim may sue for
compensation through the Agency, and can also be used to
compensate for the other procedures, such as the code of
criminal procedure.
(3)
Gov. Reg. No. 44/2008
•
Regulated the mechanism or procedure for
the compensation of victims of gross
violations of human rights and reparation for
victims of crime.
(4)
The Compensation Mechanism
1. In compensation for victims of gross violations of human rights, the petition filed by the family compensation of victims or their lawyers with special powers to the Court of Human Rights through the Agency's determination, where the filing can be done when an investigation or prior violations of human rights violation charges read out by the Public Prosecutor.
2. These provisions also apply to applications filed after the gross remuneration human rights tribunal has obtained permanent legal force.
3. In the case under examination request Compensation Board believes should be done together with the major cases of human rights violations are severe, the application is submitted to the Attorney General.
(5)
The Compensation Mechanism
4. Prosecutor demands to include the request in its decision and the Agency
consider Compensation to the Court's decision, that the human rights court then gave quotes to provide compensation to the relevant government agencies in accordance with the injunction.
5. In the implementation of the human rights court ruling on compensation is being implemented in phases, where each phase or delay in implementation should be brought to the attention of the victims, their families or their proxies to the
human rights court, which decided to many petitions or compensation.
Implementation of the decisions referred to the Attorney-General in accordance with the provisions of the legislation.
(6)
The Restitution Mechanism
1. When providing restitution to victims, ensuring the restitution of the statement of claim filed by the victims, their families or their proxies with special power of Attorney in court authority to examine, hear and decide criminal acts through the Agency.
2. If the application for restitution made pursuant to the decision of the Court, who received permanent legal force, and convicted criminals, LPSK to submit the
request together with decision and care in the District Court.
3. In the case of the request for restitution submitted before the charges was read, LPSK application along with the decisions and deliberations of the Prosecutor's Office, which was then in demand by the public prosecutor's Office said the
request for refund with the decision and discretion for a court ruling later copies of the Court shall be presented by the Agency of victims, members of their