Overseeing the resolution of the Ferienjob TIP case

SUPRIYANTO

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The legal process for handling the crime of trafficking in persons (TPPO) Ferienjob to Germany has been ongoing. This process needs to continue to be monitored in order to provide justice for victims and become good practice in eradicating TIP in the future.

There are at least three objectives that need to be achieved: completely convicting all perpetrators, including corporations, dismantling their networks, and returning victims' losses through restitution. As written by Kompas, the Ferienjob TPPO involved at least five suspects: three suspects in Indonesia who were not detained, only required to report; and two suspects in Germany who are potentially fugitives.

TPPO is a crime that is almost always committed by gangs or syndicates, namely recruiters, transporters, collectors, senders, and users of their services.

Also read: ”Ferienjob”, TPPO, and Our Global Talent

In practice, legal proceedings against syndicates are sometimes incomplete. Only some suspects go through the legal process. For example, in the case of TPPO in the karaoke business mode, the cashier of the karaoke company has been sentenced, but the karaoke owner has not been processed. In the case of TPPO in the mode of domestic helper assistants, the employer is not processed, while the recruiter and supplier have been convicted. If the employer is a foreign national abroad, it is extremely difficult to bring them to legal proceedings.

We need to appreciate the National Police for being alert and implementing Article 81 of Law No. 18/2017 concerning the protection of Indonesian migrant workers against the five suspects. The penalty is a maximum prison sentence of 10 years and a fine of IDR 15 billion. Relevant ministries/institutions and legal experts on the suspect should assist the National Police in bringing the suspect home from Germany. This is important to create a deterrent effect and a sense of fairness.

Until now, if TPPO (criminal act of money laundering) involves corporations/business entities, generally the prosecution is focused on their employees, while the corporation itself is not prosecuted. For example, TPPO with the mode of Indonesian migrant workers being employed as crew members on foreign fishing vessels. There is an indication of corporate involvement, but the legal process against it is minimal.

In the Ferienjob TPPO case, the police have actually stated that two corporations are indicated to be involved, namely PT SHB and CVGEN. For the sake of justice for the thousands of victims, it is appropriate for law enforcement officials (APH) to consider imposing a cumulative crime, namely a crime against corporations and corporate managers, not an alternative crime vide Article 87 of Law No. 18/2017.

Corporate criminal sanctions may include revocation of business permits, confiscation of criminal proceeds, revocation of legal entity status, dismissal of executives, and prohibition for executives from establishing corporations in the same business field. The public, especially legal experts, can oversee the legal process against corporations, including testifying pro bono to assist the APH in implementing a fairly complex corporate criminal sanctions system.

The system is regulated and spread across several regulations, including Law No. 18/2017 regarding the Protection of Indonesian Migrant Workers, Law No. 21/2007 regarding Eradication of Human Trafficking, Law No. 8/2010 regarding Prevention and Elimination of Money Laundering Crimes, Law No. 40/2007 regarding Limited Liability Companies, Supreme Court Regulation No. 13/2016 regarding Procedures for Handling Corporate Criminal Cases, and Attorney General Regulation No. 28/A/JA/10/2014 regarding Guidelines for Handling Criminal Cases with corporate legal entities as the subject.

Complete handling of Ferienjob TPPO will save the nation's dignity in the eyes of the world.

Dismantling the syndicate

TPPO is an organized crime, a crime committed by relying on a syndicate or network. Syndicates are generally neatly structured, inhumane, and seek maximum profit by selling other people. Sometimes with the backing of the authorities.

Uncovering a syndicate is difficult because, first, witnesses and/or victims are afraid to speak out due to concerns for their own safety and that of their families. Second, witnesses and/or victims do not know who to talk to because they are not legally aware/knowledgeable. Third, witnesses and/or victims are unwilling to speak out because they do not want to follow the lengthy and "expensive" legal process. Fourth, the network of the syndicate is difficult to identify because it is very organized.

Referring to the profile of the Ferienjob TIP victim, there is hope that the syndicate can be dismantled. Ferienjob TIP victims, the majority of whom are students, can be assumed to be knowledgeable enough about the law and are expected to have the courage to speak up to reveal the syndicate. APH can collaborate with the Witness and Victim Protection Agency.

Legislation concerning eradication of TPPO provides an opportunity to restore victims' losses through restitution. Restitution may include compensation for loss of wealth or income, compensation for suffering due to direct criminal acts, reimbursement of medical and/or psychological treatment costs, and/or other losses suffered by the victim as a result of human trafficking.

From LPSK's experience, there are still at least two weaknesses regarding restitution. First, the implementation of substitute imprisonment has not been optimal (vide Article 50 Paragraph 4 of Law No. 21/2007). Second, the implementation of the confiscation of the convict's assets has not been optimal (vide Article 50 Paragraph 3 of Law No. 21/2007). Increased communication, collaboration and synergy between APH and LPSK need to be encouraged to overcome this problem.

Asset seizure of defendants since the investigation stage with court permission, as carried out by the North Sumatra Regional Police in the TPPO Kereng Manusia case in Langkat, can be imitated.

The completion of handling TPPO Ferienjob will save the dignity of the nation in the eyes of the world. Based on data from the police, in 2023 at least 3,208 of our citizens become victims.

Antonius PS Wibowo, Deputy Chair of the RI Witness and Victim Protection Agency (LPSK)