RESTITUTION & COMPENSATION

1. RESTITUTION & COMPENSATION

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. (http://www.restorativejustice.org)

3. TERMINOLOGY OF COMPENSATION AND RESTITUTION

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. • These payments may or may not be monetary.

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. In such a way as to end the acts of revenge which called the principle of reciprocity or  iustalionis (law of retaliation). It isagreed 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 violent offenses and other serious offenses as well.

7. Restitution can cover any out-of-pocket losses directly relating to the crime, including: • medical expenses, • therapy costs,  • prescription charges,  • counseling costs,  • lost wages,  • expenses related to participating in the criminal justice process (such as travel costs, child care expenses, etc.),  • lost or damaged property,  • insurance deductibles,  • 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 18th century 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. • Socio-economic status of the perpetrator.

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 restitution that the victim has already received for a loss.

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 prosecutor can still seek restitution.)

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 when the offender has willfully failed to pay restitution.

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 offender to pay the victim for losses that weren't covered by compensation.  

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 reparation.

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 17th 1998. • 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; e. Non Recurrence Guarantee

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: • 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. • 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 : • the termination of an ongoing violation; • verification of the facts and the truth fully and openly; • decision that was announced in the interests of victims; • apology, including public acknowledgment of the facts and acceptance of responsibility; • submitted to the court those persons responsible for violations; • warning and giving residence to the victims; • 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 : • ensure effective civilian control over military and security forces. • Restrict the jurisdiction of martial-court; • strengthening the independence of the judiciary; • protect the legal profession and human rights workers. • Provide training in human rights for all sectors of society, particularly on military and security forces and law enforcement.

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. “YahyaHarahap, The discussion of the issues and the application of the Criminal Procedure Code, SinarGrafika 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 year 2000 is equal to restitution or compensation.

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: • Rights of compensation on the cases of gross human rights violations; • Rights of restitution or compensation is the responsibility of the perpetrator. 2 . Decisions on compensation and restitution awarded by the court;

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 Rights Violations .

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.