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Human trafficking differs from people smuggling. People smuggling places more emphasis on illegally sending people from one country to another which generates profits for the smugglers, in the sense that there is no exploitation. It is possible that there will be victims in people smuggling, but it is more of a risk from the activities carried out and not something that has been planned beforehand. Meanwhile, in human trafficking, from the beginning there has been a goal, namely that the person sent is the object of exploitation. Deception and coercion or violence are essential elements in human trafficking.
Writer: Patricia Cindy Andriani
Editors: Rheka Rizqiah Ramadhani, Nadia Amani Alya
Translators: Clarissa Cita Magdalena, Hasna Fatina Sakinah Abdul Kadir
Concept and Definition of Human Trafficking as a Criminal Act in General
The criminal act of human trafficking is a transnational organized crime which has become a global serious issue because the increasing significance of the chain of trafficking from time to time. Article 2 of Law Number 21 of 2007, Law on Elimination of Human Trafficking Crimes, defines criminal acts of human trafficking as:
“Any person who recruits, transports, harbors, transfers, moves or receives any person by threat, use of force, abduction, confinement, fraud, deception, abuse of power or a position of vulnerability, debt bondage or providing payments or benefits, even when obtaining the consent of another person who holds control over another person for the purpose of exploiting that person in the territory of the Republic of Indonesia, shall be punished with imprisonment for a minimum of 3 years and a maximum of 15 years and a minimum fine of Rp. 120,000,000 and a maximum of Rp. 600,000,000.”
Human trafficking differs from people smuggling. People smuggling places more emphasis on illegally sending people from one country to another which generates profits for the smugglers, in the sense that there is no exploitation. It is possible that there will be victims in people smuggling, but it is more of a risk from the activities carried out and not something that has been planned beforehand. Meanwhile, in human trafficking, from the beginning there has been a goal, namely that the person sent is the object of exploitation. Deception and coercion or violence are essential elements in human trafficking.
In principle, it is necessary to understand that the criminal act of human trafficking includes 3 (three) important elements, which are related to each other, which are:
This basic understanding of the criminal act of human trafficking is important to further understand the criminal act of child trafficking and the legal protection policies applied to children.
Facts on Child Trafficking in Indonesia
UNICEF noted Indonesia as one of the main source and destination countries as well as a transit country for human trafficking, particularly children, for the purpose of sexual exploitation and employment, of which it is estimated that around 100,000 women and children are trafficked from Indonesia each year and 40,000-70,000 of whom are child victims of sexual exploitation. Data recorded by the International Organization for Migration (IOM) in Indonesia also highlights the increasing number of victims of child trafficking in 2020, 80% of whom are sexually exploited.
Ironically, the high data on child trafficking cases in Indonesia is not directly proportional to the number of cases reported or handled by law enforcement officials and related institutions. According to Child Complaint Case Database on the Child Protection Cluster, Indonesian Child Protection Commission (KPAI), 2016-2020, cases of children as victims of trafficking reported in 2016-2020 in general decreased from 72 cases reported in 2016 to 28 cases in 2020. Former Chairperson of the National Commission for Child Protection, Arist Merdeka Sirait, revealed in a paper for the Seminar “Using DNA: Against Child Trafficking” that Indonesia is included in the category of countries with the lowest ranking in terms of combating trafficking in women and children as stated in the Trafficking in Persons Report 2001 issued by the USA Ministry of Foreign Affairs and the Economic Social Commission on Asia Pacific (ESCAP). Indonesia is considered not to have implemented the minimum standards for tackling trafficking in women and children and has not made significant efforts to combat it.
The government seeks to improve efforts to tackle trafficking in women and children, especially children, through the issuance of several statutory instruments, including: Law Number 23 of 2002 concerning Child Protection, Presidential Decree Number 59 of 2002 concerning the National Action Plan for the Elimination of the Worst Form of Child Labor, Presidential Decree No. 87/2002 on the National Action Plan for the Elimination of Trafficking in Women and Children, so that in 2003 Indonesia’s ranking improved. This effort was supported by the issuance of Law Number 21 of 2007 concerning the Eradication of the Criminal Acts of Human Trafficking in April 2007. Prior to the ratification of the 2007 Law, the regulations in force at that time were not sufficient to tackle child trafficking, such as Article 297 of the Book of The Criminal Code (KUHP) regulates very low prison sentences for perpetrators of human trafficking, for 0-6 years, then Law Number 39 of 1999 concerning Human Rights also does not regulate sanctions for perpetrators of human trafficking, and even Law Number 4 of 1979 concerning Child Welfare regulates the protection of children, but does not anticipate the crime of child trafficking. Furthermore, the protection of victims of child trafficking is also accommodated in Law Number 13 of 2006 concerning the Protection of Witnesses and Victims.
Various legal policies for eradicating the crime of child trafficking as well as protection for victims of child trafficking need to be known by all parties, be it children, families, communities, government, and law enforcement officers. This is so that efforts to overcome child trafficking can be carried out optimally, especially encouraging increased reporting of child trafficking cases and their resolution by law enforcement officials.
In the implementation of child protection, law enforcers ensure that child victims of child trafficking get justice and recovery. There are several laws that are often used, including:
Case Reporting and Law Enforcement
Case Reporting to Police or Other Supporting Institutions
When a child becomes a victim of human trafficking, the child and his/her relatives can report the case to the police, government agencies in charge of child protection and women’s empowerment, as well as private institutions that focus on child protection issues.
Victims, relatives and anyone who has experienced, seen, and/or witnessed an alleged criminal act of child trafficking can report it to the police, either at the National Police Headquarters, or to district or local level police officers or offices (Polda, Polres, or Polsek). Parties who intend to report can immediately go to the Integrated Police Service Center to submit reports or contact the Police Call Center 110 which receives reports 24 hours, 7 days a week.
Furthermore, police investigators will conduct an investigation first to determine whether the reported act is a criminal act or not. If the reported act is deemed to have fulfilled the elements of a criminal act, the police investigator/assistant investigator will carry out an investigation process based on the police report and Investigation Order.
Since 2007, the Indonesian National Police has established the Women and Children Service Unit (UPPA) which is tasked with providing services in the form of protection for women and children who are victims of crime and law enforcement against perpetrators, including cases of human trafficking. This Investigating Unit officer under UPPA will carry out investigations of perpetrators of crimes against women and children. When the victim and/or witness reports to the police regarding a child trafficking case, the victim and/or witness must be placed in a special examination room (RPK). If the victim and/or witness is in a trauma/stress condition, the investigator is obliged to bring the victim and/or witness to P2TP2A or the nearest hospital for treatment, before continuing the interview.
Other Supporting Institutions
If the victim or relative is reluctant to report a child trafficking case to the police because of trauma, shame, fear, and discomfort, the victim and relatives can report it to other supporting institutions in charge of protecting children and women both in the government and private sectors, including:
Chart 1. Mechanism of Integrated Service (P2TP2A)
In the early stages, child victims and relatives can directly come to the local P2TP2A to report cases of child trafficking. In addition to victim reports, P2TP2A can also follow up on the handling of child trafficking cases from the referral process and through outreach. Furthermore, P2TP2A will carry out a victim identification process which includes: screening, assessment, and intervention plans according to the needs of the victim. Child victims will be asked to fill out a screening form which has been made by taking into account the principles of respecting human rights, avoiding gender bias, and implementing the fulfillment of children’s rights.
P2TP2A will also forward the cases reported to the police for legal processing and provide legal assistance to victims starting from the protection of witnesses and/or victims, the process of carrying out BAP investigations in the police, the prosecution process at the prosecutor’s office to the examination process in court. This includes legal assistance to obtain victim restitution which is processed by the police covering material and non-material losses suffered by the victim, collected and attached together with the case file
Child victims can apply for protection to the LPSK through a number of available media, including sending an application to the LPSK office address, submitting an application through the LPSK Protection Application (available on Playstore), sending messages via Whatsapp and email services), or contacting the hotline directly. LPSK. Detailed reporting information can be accessed on the LPSK official website: Lembaga Perlindungan Saksi dan Korban (lpsk.go.id).
On the report submitted, LPSK immediately conducts an examination of the application and provides a written decision no later than 7 (seven) days after the application for protection is submitted. Furthermore, LPSK will provide protection and assistance to victims and/or witnesses in the form of providing legal assistance, health rehabilitation, social rehabilitation, repatriation, and social reintegration. However, before that, witnesses and/or victims must sign a statement of willingness to follow the terms and conditions of the LPSK.
Child victims and relatives also have the option to report cases of child trafficking to NGOs that focus on child protection issues, such as Rumah Faye. NGOs that know or receive reports related to cases of child trafficking must immediately follow up on these reports to the local police.
Rumah Faye itself has a program for the release of child victims of human trafficking, whose activities include: receiving referrals for cases and victims through cooperation and coordination between the government, NGOs and law enforcement officers; assisting victims in the legal process, such as receiving reports/complaints, assessing victims, assisting the BAP process, mediation, case titles (if needed), assisting the post-mortem process, handling cases, assisting victims in giving testimony in court and monitoring the course of cases to case decisions; and conduct field assessments to police stations and vulnerable areas.
Police Investigation Stage
After the Investigation Warrant is issued, the police will issue a Notice of Investigation Commencement (“SPDP”). This SPDP is then sent to the public prosecutor, the reporter/victim, and the reported party within a maximum of 7 (seven) days after the issuance of the Investigation Order. In the process of this investigation, the police will examine and collect evidence on cases of child trafficking through examination of suspects, arrests, detention, examination of witnesses, examination of experts, and other actions as necessary. Investigators are also allowed to tap telephones or other communication tools suspected of being used to prepare, plan, and commit criminal acts of trafficking in persons for a maximum period of 1 (one) year, by obtaining written permission from the head of the court.
Next, the investigator will make an official report on the implementation of these actions and submit the case file to the public prosecutor to proceed to the prosecution stage. If the investigation process is deemed to have been completed, the suspect and the evidence will also be submitted to the public prosecutor.
Prosecution Stage by the Prosecutor
After receiving the case file from the investigator, the public prosecutor will examine the file and the evidence provided. If it is judged that there are deficiencies, the public prosecutor will give instructions to the investigator to improve and/or complete the results of the investigation. Furthermore, the public prosecutor will make an indictment and delegate the case to the court.
In the process of prosecuting cases of child trafficking, as mandated in the Palermo Protocol as outlined in the Circular Letter of the Deputy Attorney General for General Crimes Number: B-185/EJP/03/2005 concerning the Pattern for Handling Cases of the Crime of Trafficking in Persons, the public prosecutor does not have to prove the elements The “method” used by the perpetrator in the criminal act of trafficking in persons is because in the case of child trafficking, as long as the recruitment, transportation, etc., and exploitation objectives are met, the perpetrator can be considered proven to have committed a child trafficking crime.
Examination Stage in the Court Session by the Panel of Judges
After the case file has been transferred by the public prosecutor to the district court, the panel of judges will examine and decide on the case in court. In principle, the judge may only impose a sentence if there is at least 2 (two) valid evidence that the judge believes that a criminal act has actually occurred and the defendant is guilty of committing it. In the case of child trafficking, the testimony of a victim witness alone proves that the defendant is guilty, if accompanied by one other valid piece of evidence.
The trial of the crime of trafficking in children to examine witnesses and/or child victims is carried out in a closed session in order to protect the best interests of the child. Witnesses and/or victims must be accompanied by their parents, guardians, foster parents, advocates, or other companions. Examination of witnesses and/or child victims in court proceedings must also be carried out without the presence of the accused. In addition, examination of witnesses and/or child victims, with the approval of the judge, can also be carried out outside the court session by recording.
Several institutions that play a role in the victim recovery process, both in the government and private sector, include:
The DP3AP2KB, which is formed at every district/city level, functions to collect data and report on cases of child trafficking and coordinate with relevant parties regarding referrals for handling child trafficking cases, including victims’ recovery efforts. Particularly in terms of victim recovery, DP3AP2KB will conduct an assessment related to the needs of victims in recovery, then coordinate with the head of the service/UPTD/P2TP2A to provide appropriate services to victims.
Victim Returning Process
In addition to rehabilitation and legal assistance, P2TP2A also assists in the repatriation process of victims from abroad to the province or domestically to their area of origin or their families or substitute families, upon the wishes and consent of the victims, or from within the country to the country of origin while still prioritizing protection services and fulfilling their needs. . P2TP2A provides assistance to victims who have received services and will be returned to their families or substitute families. If the victim comes from a country directly bordering Indonesia, then the border P2TP2A after the handover from the Indonesian representative abroad, the victim will be provided with rehabilitation services and/or assistance, after which he will be returned to his area of origin, in coordination with the relevant agencies.
Victim’s Social Reintegration Process
The final process of the services provided by P2TP2A for victims is the process of social reintegration, in which the victim is reunited with their family or a substitute family and efforts are made so that the victim can be accepted again by their family and community. This process includes economic and social empowerment and provision of skills so that they can be productive economically, providing education for victims who are still in school and disconnected due to being victims, monitoring/advanced guidance, as well as home visits to monitor the condition of victims after the unification process with the family.
Rights of Victims (and/or Witnesses) in Legal Process
In the process of investigation, prosecution, and examination in court, the complainant (victim) has the right to keep his name and address confidential or other matters that give the possibility of knowing the reporter’s identity. Suppose the victim asks to keep his name and address secret or other matters. In that case, the obligation to keep his identity secret is notified to witnesses and other people concerned with the crime of trafficking in persons prior to the examination by the competent authority conducting the examination (Article 33 of TPPO Law).
In addition, if the witness and/or victim feels that they are in a very big threat, then with the approval of the judge, the witness and/or victim can give testimony without being present in court and provide their testimony remotely through audio-visual communication tools (Article 34 TPPO Law in conjunction with Article 9 of LPSK Law). Furthermore, this shall be understood that witnesses, victims, and reporters cannot be prosecuted, both criminally and civilly, for reports, testimonies that will be, are being, or have been given as long as the information is given in good faith (Article 10 of LPSK Law).During the process of investigation, prosecution, and examination in court, witnesses and/or victims have the right to be accompanied by advocates and/or other necessary assistants. Other assistants include psychologists, psychiatrists, health experts, clergy, and family members (Article 35 of TPPO Law).
The victim has the right to get information about the development of the case involving him. Information about the case’s progress can be in the form of providing a copy of the case examination report or a resume of the examination results at the level of investigation, indictments and demands, and court decisions (Article 36 of TPPO Law).
Witnesses and/or the victim have the right to ask the trial’s presiding judge to provide information before the court session without the Defendant’s presence. Defendant examination can be continued after they have been informed of all the information given by the witness and/or victim outside the courtroom (Article 37 of TPPO Law).
Investigations, prosecutions, and examinations in the court of witnesses and/or child victims are carried out by taking into account the child’s best interests by not wearing an official uniform. In addition, trials for criminal acts of trafficking in persons to examine witnesses and/or child victims are conducted in closed courts, without the Defendant’s presence (Articles 38 and 39 of TPPO Law).
Victims’ Rights After Legal Process
Compensation is money provided by the state because the perpetrator cannot provide full compensation, which is their responsibility to the victim or their family. Victims of serious human rights violations (one of them, child trafficking) are entitled to compensation. This application for compensation is submitted in writing to the human rights court through the LPSK (Article 2 PP No. 7/2018).
Restitution is different from compensation, where restitution is compensation given to the victim or her family by the perpetrator or a third party. Victims are entitled to restitution in the form of compensation for: (a) loss of wealth or income; (b) suffering; (c) costs for medical and/or psychological treatment measures; and/or (d) other losses suffered by the victim as a result of trafficking in persons. This restitution will be included in the court’s decision. The convict is obliged to provide restitution to the victim as a form of implementing the court’s decision within 14 (fourteen) days from the notification of the decision, which has permanent legal force.
If restitution has been given to the victim, its implementation must be reported to the head of the court that decided the case. However, if the convict has not provided restitution within the specified period, the victim or their heirs can notify the court. The court will give a written warning to the convict. If it is still not fulfilled, the court will order the public prosecutor to confiscate the convict’s assets and auction the property for restitution payments to the victim (Article 48-50 of TPPO Law).
The victim has the right to obtain health rehabilitation, social rehabilitation, repatriation, and social reintegration from the government if the victim experiences physical and psychological suffering due to the trafficking crime. The rights to rehabilitation are proposed by the victim or the victim’s family, friends of the victim, the police, companion volunteers, or social workers after the victim reports the case they have experienced or other parties report it to the police. The police then forward rehabilitation requests to relevant agencies such as DP3AP2KB, P2TP2A, and NGOs to recover victims (Articles 51-53 of TPPO Law).
In the process of law enforcement in child trafficking cases, law enforcement officers mostly use the Criminal Code to ensnare perpetrators of human trafficking, where the threat of punishment is very light and does not create a deterrent effect for the perpetrators. Article 83 of the Child Protection Law has included a prohibition on trafficking, selling, or kidnapping children for themselves or sale. However, similar to the Criminal Code, the Child Protection Law also does not specify what is meant by child trafficking and for what purpose the child is sold. This redactional article often becomes a gap in the law enforcement process that causes child traffickers to escape the legal snares that should be accepted.
Differences in interpretation of victims, weak coordination between law enforcers, and issues of corruption and collusion are challenges in law enforcement in child trafficking cases. Until now, there is no mechanism for controlling, monitoring, and receiving complaints both internally and externally. Law enforcers more often treat victims as perpetrators of criminal acts. There is a tendency to show that victims are unsure of the reaction of law enforcement to events experienced by victims or victims are afraid of not being believed.
Differences in interpretation of the criminal act of trafficking in persons among law enforcement officers are due to the lack of training in law enforcement regarding human trafficking, the absence of standard procedures specifically designed to deal with this crime so that it is very dependent on the perception and ability of individual law enforcers. It is often the case that the police stop investigations because the evidence and witness statements are deemed insufficient or invalid. In addition, weak coordination between law enforcement agencies also hampers the monitoring and evaluation process of law enforcement, in which the police do not know the results of judges’ decisions concerning the cases they submit to the prosecutor’s office and the court or the prosecutor’s office does not know the results of court decisions.
The RPK that was created specifically for women and children at the police station has not been used optimally by the community. Many people have not been compelled to complain to the RPK if they become victims of the criminal act of trafficking in persons. When victims come, they want to go home immediately. If the RPK holds the victim longer, operational funds are needed to provide victims assistance, rehabilitation, and services, while the funds have not been included in the budget.
The public’s understanding and awareness of the crime of trafficking in persons, especially children, are still low, so they are not moved to report cases of trafficking in persons to the police.
Victims and their families often refuse to report trafficking cases to the police and other supporting institutions, including providing information about the perpetrators and even protecting them. This is because both the victim’s family and the perpetrator feel that this is a family disgrace that should not need to be known by other parties, or there is a threat from those closest to the perpetrator not to report or withdraw the report of the child trafficking case that occurred.
Most of the safe houses or shelters owned by the government at the city or district level only provide services for 2 (two) weeks for the victim to stay, so it is necessary to provide further services for the victim, especially if the perpetrator is a close family member such as the biological father or stepfather. There is a threat to the victim due to refusal from the family. In addition, the availability of experts in the regions is also still lacking, especially psychologists who have experience in dealing with victims.
The threat of losing the right to education for victims, especially for victims who experience pregnancy, often gets rejected from school because it is considered a disgrace and has a bad influence on other students. Then, there is still a lack of economic empowerment services for the victim’s family, especially if the perpetrator is the backbone of the victim’s family.
Since 2016, Rumah Faye has provided legal assistance, recovery and reintegration services to 160 victims. The following are the steps for the services provided to victims.
Reports or Victim Referrals
The cases received by RF come from many sources, including:
The victim’s referral received by Rumah Faye from P2TP2A/KPPAD/Police means that the victim has been rescued from an exploitation situation and the case has been handled by the police. In this process, Rumah Faye will coordinate with the police or the referral party to obtain information related to the case experienced by the victim to determine the initial steps for the services provided.
On the other hand, Rumah Faye will also check whether the victim is injured or not. When there are injuries or sickness, Rumah Faye will immediately take the victim to the hospital to get immediate health services.
Legal Assistance
The legal assistance process provided by Rumah Faye:
In the process of handling this case, many challenges were faced, for example threats from perpetrators, and sometimes slow law enforcement processes and so on. Therefore, Rumah Faye cooperates with several institutions to ensure that the fulfillment of justice for the victims can be upheld.
Rumah Faye cooperates with P2TP2A Batam City and Riau Islands province, NGOs in Batam city such as KKP PMP, Embun Pelangi Foundation, LBH Mawar Sharon, LPSK, and others. Rumah Faye provides services for victims who are threatened by perpetrators or groups who do not want law to be enforced so that their security and safety are threatened.
Recovery
Rumah Faye provide services for victims by two recovery models, namely:
The Faye’s shelter has two functions, namely a safe house and a recovery shelter. Victims who get recovery in the shelter are those who need a safe situation because they are threatened after the case is handled by the police, and the victim’s family cannot provide adequate recovery or recovery. Victims can stay in the shelter for two weeks to one year according to the needs of the victim. The services provided in the shelter are:
To maximize the services provided, Rumah Faye collaborates with many parties including: the Office of Women Empowerment and Child Protection in Batam City and Riau Islands Province, Batam City Social Service, Puskesmas, Elisabeth Hospital Batam City, NGOs such as KKP PMP, Embun Pelangi Foundation , Lintas Nusa, P2TP2A Batam City and Riau Islands Province.
Basically the best recovery for victims is when they are with family who can protect them. Therefore, when the victim is under good family protection, Rumah Faye provides services in the form of recovery outside the shelter. What we do are:
Social Reintegration of Victims/Survivors
When the survivors have finished their recovery phase and are ready to be in the midst of the community. Rumah Faye takes steps to unite survivors with their families/or guardians who will receive them. If the victim/survivor does not have a family/or guardian to return home, Rumah Faye will cooperate with the government to meet the needs of the victim.
Against trafficking, violence and exploitation of children
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