Victims of criminal acts often experience civil losses as a result of criminal acts, thus, a criminal case is often followed by a civil case because that the victim demands compensation suffered in connection with a criminal act committed by perpetrators. Based on the issues which include 2 (two) aspects of the law, e.t. criminal law and civil law, Positive Law in Indonesia has given the right to victims of criminal acts to ask for compensation to perpetrators to provide compensation of criminal acts committed by the perpetrators in several ways and applicable regulations.
Amidst it which can be seen in Law Number 8 of 1981 concerning the Code of Criminal Procedure (hereinafter referred to as “KUHAP”) which has protected to victims who have suffered losses from a criminal case by submitting an application for combining the case of the compensation demand with the criminal case as contained in Article 98 of KUHAP which reads as follows,
“(1) If an act which becomes the basis of a charge in the examination of a criminal case by a court of first instance causes harm to another person, the judge/chairman of the court session at the request of said person can decide to combine the case of the compensation demand with the criminal case.
(2) The request as intended in paragraph (1) can only be made at the latest before the public prosecutor presents his criminal charge. In case the public prosecutors is not present, the request shall be submitted before the judge pronounces his verdict.”
The combination of examinations and verdicts in the case of the compensation demand with the criminal case is an implementation of the principle of equality as outlined in KUHAP. In this case, it is also supported by the authority of the Judge as mentioned in Article 14c of the Criminal Code (hereinafter referred to as “KUHP“) reads as follows,
“(1) By the order referred to in Article 14a, the judge may, except in case of sentence to fine, in addition to the general condition, that the sentenced person shall, within a fixed period of time shorter than the probation period, compensate wholly or partly for damages caused by the punishable act…”
In Article 14c of KUHP, the Judge can include special conditions in the form of compensation which coincide with the sentence imposed to the perpetrator (The Accused), this is certainly very beneficial to the victim. The victim can submitting an application for combining the case of the compensation demand with the criminal case as long as the Public Prosecutor has not submitted the criminal claims, in the case the Public Prosecutor is not present when the victim submits the application for combining the case, the victim can still apply for combining the case as long as the Panel of Judges which adjudicate and examine the criminal case has not handed down a verdict as stipulated in Article 98 paragraph (2) of KUHAP.
The existence of combining the case of the compensation demand with the criminal case submitted by victims is recognized normatively and in practice in Indonesia as seen in the Klaten District Court Verdict Number 83/Pid.B/2022/PN.KLN which in its consideration recognizes an application for combining the case of the compensation demand with the criminal case as follows,
“Considering, based on the facts revealed at the trial, it is true that there are other parties/other victims who filed an application for combining the case of the compensation demand through their Solicitor a quo which the case submitted is by with article 98 paragraphs (1) and (2) of KUHAP and the Panel of Judges are based on the facts revealed at the trial as well, especially from the testimony of witnesses, showing that the application filed has a relationship law with a quo case, therefore based on the aforesaid considerations the Panel of Judges have issued a Determination to accept the submitting of an application for combining the case of the compensation demand with the case a quo.”
In addition, recognition of the practice of combining the case of the compensation demand with the criminal case is also found in the Sidoarjo District Court Verdict Number 196/Pid/S/B/1998/PN. Sidoarjo which in its consideration reads as follows,
“..Considering, based on the injuries caused by the defendant’s negligence, the plaintiff was admitted to the Sidoarjo general hospital for 3 days and the plaintiff’s motorcycle was damaged, with medical expenses and motorcycle repairs borne by the plaintiff which cost as stated in the receipt evidence; Considering, that based on the above considerations, the panel of judges are in the opinion that the plaintiff’s claim should be granted as compensation due to the negligence committed by the defendant.”
Deriving from the verdict above, it has been shown that victims of criminal acts can claim compensation by submitting to combining the case. This combining procedure is the process that carries out 2 (two) coinciding examinations, e.t. criminal proceedings, then continues with civil proceedings for the examination of compensation, both will be adjudicated simultaneously in one Court Verdict. Regarding the implementation of a Court Verdict that combines the case of the compensation demand with the criminal case, then it will be carried out by the procedure for implementing civil judgments (Vide Article 274 of KUHAP). Therefore, if the compensation is granted and the Verdict contains a combining the case is legal and binding (inkracht), however, the Accused (in the claim for compensation referred to as the Defendant) does not carry out the verdict voluntarily to undertake compensation, then the victim (in the compensation claim is referred to as the Plaintiff) can ask the Chief Justice of the District Court to give a reprimand (aanmaning) for the Accused/Defendant to carry out the obligations as stipulated in Article 196 Herziene Indonesich Reglement (hereinafter referred to as “HIR”)/207 Rechtreglement voor de Buitengewesten (hereinafter referred to as “RBG”). Nonetheless, if after being given a reprimand (aanmaning) that the Accused/Defendant still does not carry out the obligations, then according to Article 197 HIR/208 RBG the victim/Plaintiff can ask the Chief Justice of the District Court to confiscate movable and/or immovable property belonging to the victim/Plaintiff, even the victim/Plaintiff can request auction execution if there are objects belonging to the Defendant/Defendant confiscated as stipulated in this Article 200 paragraph (1) HIR/217 RBG that in the case if the Defendant/Defendant still does not carry out the obligations to the victim/Plaintiff.
Furthermore, the verdict of combining the case of the compensation demand with the criminal case is the same as the verdict in general, which can be filed as legal remedies (appeal, cassation, and judicial review) as expressly stipulated in Article 100 of KUHAP. Based on Article 100 of KUHAP, such legal remedies can be carried out as long as the Verdict in the criminal case is also objected to, in other words, it is not allowed to file objections only to the Verdict in the civil case/compensation without objecting to the initial Verdict (criminal act).
However, although the application of combining the case of the compensation demand with the criminal case is recognized for its existence normatively and practically, combining the case in the field is still quite rare in the implementation. Based on reality, not all Criminal Judges want to apply Article 14c of KUHP with the grounds that as far as compensation is concerned, it is not the authority of the Criminal Judge to adjudicate, thus, the more frequent way taken by victims to claim compensation to perpetrators is to file a lawsuit regarding compensation separately. Such conditions can be seen in the Banda Aceh High Court Verdict Number 121/PID/2013/PT-BNA which in its consideration seems to dichotomy the combining the case of the compensation demand with the criminal case so that it reads as follows,
“…in the event of combining the compensation demand, according to the Code of Criminal Procedure, the Public Prosecutor is not capable of representing the victim and including compensation in the criminal claim, because the claim for compensation under article 101 of KUHAP is subject to the law of civil procedure as in the KUHAP is not otherwise regulated…”
As mentioned earlier the most common thing made by victims to seek compensation from perpetrators is to file a lawsuit regarding compensation separately, then of course this can also be a way for victims to claim compensation which is a result that arises from criminal acts committed by perpetrators through a Civil Lawsuit. The lawsuit that can be filed by the victim to the perpetrator is grounded in the reason of Unlawful Acts (PMH) committed by the perpetrator. The legal basis for the application for compensation due to unlawful acts itself is expressly regulated in Article 1365 of the Code of Civil Procedure (hereinafter referred to as the “KUHPerdata“) which reads as follows,
“Every unlawful act, which brings harm to another person, obliges the person who by mistake published the damage, to indemnify it.”
Compensation lawsuits which ground with unlawful acts can be made if the criminal act committed by the perpetrator has been adjudicated by the Court and is already legal and binding (inkracht). Because compensation in this case is a loss incurred to the victim as a result of a criminal act that was first committed by the perpetrator, thus, in the context of asking for compensation, it absolutely should be undertaken if the criminal act has been proven first through a Court Verdict. Consequently, the verdict related to the criminal case that has been inkracht can be evidence for the victim when filing a lawsuit regarding compensation separately as this provision is stipulated in Article 1918 of KUHPerdata that reads as follows,
“A verdict of Judge who has acquired legal and binding, by which a person has been convicted of a crime or offense, in a civil case may be accepted as evidence of the act committed unless it can be proved otherwise.”
Moreover, the requirements for filing a lawsuit regarding compensation based on this unlawful act must also fulfill several elements, e.t: (i) the existence of unlawful acts; (ii) the presence of errors; (iii) any losses incurred; and (iv) there is a causal relationship between the act and the loss (Fundamentals of the Law of Obligations, R. Setiawan, S.H., p. 75-76). Therefore, the victim can file an Unlawful Action Lawsuit (PMH) to the Court to claim compensation from the perpetrator as long as the above elements can be proven by the victim as the Plaintiff in the Lawsuit.
Another remedy that can be taken by victims to seek compensation from perpetrators in connection with their criminal acts is to apply for restitution. The legal basis of restitution is regulated in Article 1 Number 11 of Law Number 13 of 2006 concerning the Protection of Witnesses and Victims as amended by Law Number 31 of 2014 concerning Amendments to Law Number 13 of 2006 concerning the Protection of Witnesses and Victims (hereinafter referred to as the “LPSK Law“) which reads, “Restitution is compensation given to the Victim or their Family by the perpetrator or a third party“.
The procedure for applying restitution is regulated in Supreme Court Regulation Number 1 of 2022 concerning Procedures for Completing Applications and Granting Restitution and Compensation to Victims of Criminal Acts (hereinafter referred to as “Perma No. 1/2022“). Based on Article 3 of Perma No. 1/2022, the request for restitution is submitted by the victim to the Court which is adjudicating the perpetrators a quo by being able to demand the forms of restitution as mentioned in Article 4 of Perma No. 1/2022, inter alia:
- compensation for loss of wealth and/or income;
- compensation, both material and immaterial, incurred as a result of suffering directly related to the criminal act;
- reimbursement of medical and/or psychological treatment costs; and/or
- other losses suffered by victims as a result of criminal acts, including basic transportation costs, solicitor fees, or other costs related to legal proceedings.
Requests for restitution can be made before the case files are transferred to the Court or at the latest before the Public Prosecutor proceeds with the criminal claims, even after the criminal Court Verdict is already legal and binding (inkracht), a restitution application can still be filed (Vide Article 8 paragraph (2) and Article 11 paragraph (1) of Perma No. 1/2022). However, it is known that the request for restitution only applies to certain criminal acts such as breach of human rights violations, terrorism, trafficking in persons, racial and ethnic discrimination, crimes related to children, and other crimes determined by the Decree of the Witness and Victim Protection Agency (LPSK) (Vide Article 2 paragraph (1) letter a of Perma No. 1/2022).
Based on the description above, it proves that laws and regulations in Indonesia have accommodated problems related to losses suffered by victims of criminal acts. Victims who suffer losses have the right to seek compensation from the perpetrator as long as the victim can fulfill the requirements that have been determined through several ways, e.t., first, submit an application for combining the case of the compensation demand with the criminal case, second, submit a Civil Lawsuit to claim compensation separately with the basis of Unlawful Acts (PMH), third, submit a request for restitution.
In the author’s general view, the most efficient step for victims to seek compensation arising from a criminal act is to submit an application for combining the case of the compensation demand with the criminal case, so that without having to carry out criminal and civil proceedings separately, the victim can claim losses simultaneously in one examination at trial. However, obstacles in the field to the mechanism of combining the case have not been found much in practice, thus, according to the author’s point of view the application is still quite difficult to be applied by the Panel of Judges, because often Judges still separate their authority in criminal realm with civil. Therefore, the most realistic and effective remedy for victims is to submit a Civil Lawsuit separately after the criminal verdict is inkracht, then the verdict of the criminal act of the perpetrator which has inkracht can be supporting evidence for the victim to claim compensation arising from the criminal act committed by the perpetrator /the Accused to the victim. Meanwhile, restitution is certainly the first remedy that can be chosen if the victim is a victim of a certain crime as mentioned in Article 2 paragraph (1) letter a of Perma No. 1/2022.
Here’s the discussion in this article, if there are things you want to talk about the mechanism for requesting compensation in criminal cases that you may be facing, then you can contact us at TRNP Law Firm to get more information.
