DRAFT BILL
LAW OF REPUBLIC OF INDONESIA
 
ON

WITNESSES AND VICTIMS PROTECTION

UPON THE MERCY OF GOD THE ALMIGHTY
PRESIDENT OF REPUBLIC OF INDONESIA,

Considering:

a. that one of the substantial evidence in a court proceeding is in the form of a testimony given by Witnesses and/or Victims who hear, see or experience an offence in order to find and seek for clarity of an offence perpetrated by an accused offender;-
b. that law enforcers in finding and seeking for clarity of an offence perpetrated by an accused offender often find difficulties because they are unable to present Witnesses and/or Victims due to threats, whether physical or psychological from certain parties;
c. that in relation to the above matter, the presence of protection for Witnesses and/or Victims is important in court proceedings;
d. that based on the consideration stated in point a, point b, and point c, it is necessary to enact Law on Witnesses and Victims Protection;

In the view of:

1.      Article 20, Article 21, and Article 28G in Republic of Indonesia’s 1945 Constitution;
2.      Law No. 8/1981 on Criminal System (State Gazette No.75/1981; Supplement to State Gazette No.3208);
3.      Law No. 2/1986 on General Court (State Gazette No.20/1986; Supplement to State Gazette No.3327);
4.      Law No. 31/1997 on Military Court (State Gazette No.84/1997; Supplement to State Gazette No.3713);

Upon the agreement between
REPUBLIC OF INDONESIA’S HOUSE OF REPRESENTATIVES
and
PRESIDENT OF THE REPUBLIC OF INDONESIA

DECIDE:

To stipulate: LAW ON WITNESSES AND VICTIMS PROTECTION

CHAPTER I
GENERAL PROVISIONS

Article 1

In this Law, that which is intended by:
1.  Witnesses shall mean people who can provide information for the purpose of investigation, litigation, prosecution and court proceeding on an offence, which they hear, see and/or experience themselves.
2.  Victims shall mean persons who have suffered from physical or mental harm as well as economic loss due to a violation of criminal laws.
3.  Court Jurisdiction shall mean court jurisdiction which covers General Court and Military Court.
4.  Witnesses and Victims Protection Agency shall mean an agency whose task and authority is to provide protection and other services to Witnesses and/or Victims as stipulated in this law.                                                                                                                       
5.  Threat shall mean any form of action which implies forcing witnesses and/or victims to perform or not to perform something in a matter related to their testimony in a court proceeding.
6.  Families of Witnesses and/or Victims shall mean the immediate family who are blood-related or due to marriage with the witness and/or victim, and or dependants of the witness and/or victim, third-degree, or having a relationship with them.
7.  Protection shall mean a form of action to provide shelter or protection for a person who needs it to feel safe from any surrounding threat.

Article 2

This law provides protection to Witnesses and Victims in all stages of court proceedings in Court Jurisdiction.

Article 3

Witnesses and Victims Protection is based on:
a.  Respect for inherent dignity and worth of a human person;
b.  Sense of safety; and
c.  Justice.

Article 4

Witnesses and Victims Protection aimed at providing a sense of safety to the Witness and Victim in presenting their testimony in a court proceeding.

ARTICLE II
PROTECTION AND THE RIGHTS OF WITNESS AND VICTIMS

Article 5

1.  Witnesses and victims are entitled to:
a. protection of their personal safety against any physical or psychological threat from another person related to the testimony that they will give, are giving or have given on an offence; 
b. the right to choose and determine the form of protection and security assistance;
c. the right to obtain legal advice;. 
d. the right to exert information without any pressure;
e. the right to obtain an translator;
f. the right to be free from misleading questions;
g. the right to be notified of court proceedings;
h. the right to information about court’s conviction;
i. the right to information about release of the offender;
j. the right to obtain new identity;
k. the right to obtain relocation; and/or
l. right to obtain reimbursement for transport expenses as necessary.

(2) The rights stipulated in paragraph (1) are also provided to the Families of Witnesses and Victims in certain cases in accordance with the decision made by Witnesses and Victims Protection Agency.

Article 6

Victims violence and serious human rights violations, asides from being entitled to the rights stipulated in Article 5, are also entitled to obtain assistance in the form of:
a. medical services; and
b. psycho-social rehabilitation services.

Article 7

(1) Victims through Witnesses and Victims Protection Agency, are entitled to request to the court:
a. the right to compensation in violent offence and serious human rights violations;
b. the right to restitution or compensation by the offender .
(2) The verdict on compensation and restitution is given by court.
(3) Provisions regarding the distribution of compensation and restitution are governed further through a Government Regulation.

Article 8

Protection and assistance to the Witness and Victim is given since the investigation stage starts, and ends in accordance with the provisions stipulated in this law.

Article 9

(1) A Witness and/or Victim who feels that he or she is in serious threat, upon the judge’s approval, can give his or her testimony without being present in the court where the offence is being tried,
(2) The Witness and/or as stipulated in paragraph (1) can give his or her testimony in writing which is presented before an authorized official and sign his signature in a dossier containing that testimony.
(3) The testimony of the witness and/or as stipulated in paragraph (1) can also be heard directly through an electronic means accompanied by an authorized personnel.

Article 10

A Witness who is also one of the offenders in the same case cannot be released from any charges if he or she is proven legally and convincingly guilty, however, the judge can use his or her testimony as a consideration to lessen the sentence.

CHAPTER III
WITNESSES AND VICTIMS PROTECTION AGENCY

Article 11

(1) Witnesses and Victims Protection Agency is an independent agency.
(2) Witnesses and Victims Protection Agency must be established at least in every provincial capital and regency/city deemed necessary by Witnesses and Victims Protection Agency.

Article 12

Witnesses and Victims Protection Agency is responsible in providing protection and assistance to Witnesses and Victims based on the provisions stipulated in this law.

Article 13

1)  Members of Witnesses and Victims Protection Agency consist of 7 (seven) people who come from elements such as National Commission for Human Rights (Komnas HAM), State Police, Attorney General, Department of Justice and Human Rights, Academia, and Community Organizations.
2)  The Head and Secretary of Witnesses and Victims Protection Agency are elected by members of Witnesses and Victims Protection Agency.
3)  Criteria for members of Witnesses and Victims Protection Agency, and procedures for the election of the Head and Secretary is governed further by a Government Regulation.

Article 14

(1)  The serving term of the Head, Vice Head, and members of Witnesses and Victims Protection Agency is 5 (five) years.
(2)  The term as stipulated in paragraph (1) can be extended for one more term of five years.

Article 15

(1).  Decision made by Witnesses and Victims Protection Agency is one based on unanimity of deliberations to reach consensus amongst members.
(2).  In a case where such decision stipulated in paragraph (1) cannot be obtained, decision is then made by the highest vote.

Article 16

(1)  Witnesses and Victims Protection Agency is accountable to the President.

(2)  Witnesses and Victims Protection Agency prepares its copy of accountability periodically to the House of Representatives (DPR) minimum once in 1 (one) year and submitted to the Ministry of Justice and Human Rights. 

Article 17

All expenses for Witnesses and Victims Protection Agency shall be born by the State.

CHAPTER IV

PROCEDURES FOR THE PROVISION OF PROTECTION AND ASSISTANCE

Part One
Procedures for the Provision of Protection

Article 18

A person who becomes witness and/or victim is entitled to obtain protection as stipulated in Article 5 through the following procedure:
a. The said Witness and/or Victim, either by own initiative or by request from an authorized official, can request for protection to Witnesses and Victims Protection Agency due to a possible threat;
b. Witnesses and Victims Protection Agency will conduct an assessment on the Witness and/or Victim’s request for protection as stipulated in point a;
c. The decision made by Witnesses and Victims Protection Agency will be given in writing within 7 (seven) working days since the request is submitted.

Article 19

(1) In a case where Witnesses and Victims Protection Agency believes that the Witness and/or Victim’s condition render the necessity of protection for their safety of that of the families, the Witness and/or Victim will be requested to sign a protection agreement.
(2) The agreement signed by the Witness and/or Victim and Witnesses and Victims Protection Agency contains:
a. Witness and/or victim’s willingness to uphold the regulation regarding his or her safety.
b. Witness and/or victim’s willingness not to communicate with other people in any way except with the approval from Witnesses and Victims Protection Agency during the time they are under the protection of this Agency.
c. Witness and/or victim’s willingness not to inform anybody regarding their whereabouts under the protection of Witnesses and Victims Protection Agency.
d. Obligations of Witnesses and Victims Protection Agency to provide full protection to the Witness and/or Victims, including their families.
 

Article 20

(1)  Protection for Witness and/or Victim’s safety can only be terminated based on the following reasons:
a. Witness and/or Victims request that their protection be terminated.
b. Witness and/or Victims violated the provisions written in the agreement.
Witnesses and Victims Protection Agency is under the opinion that the Witness and/or Victims no longer require protection based on substantial evidence.
(2)  In terms of the Witness and/or Victim object to the termination of protection by Witnesses and Victims Protection Agency, he or she is entitled to submit his/her objection to the court who will decide on the matter.
(3)  Termination of protection on the safety of a Witness and/or Victim must be conducted in writing.

Part Two
Procedures for Provision of Assistance

Article 21

Assistance as stipulated in Article 6 is provided to a witness and/or victim upon a written request from the witness and/or victim or the representative to Witnesses and Victims Protection Agency.

Article 22

(1) Witnesses and Victims Protection Agency will evaluate the reason to determine the feasibility of the provision of assistance to the Witness and/or Victim.
(2) Criteria for provision of assistance include the length of time and the mount of assistance to the Witness and/or Victim.
(3) Provisions on the feasibility as stipulated in paragraph (1) and the criteria for the provision of assistance as stipulated in paragraph (2) is governed further by a Government Regulation. 
 

Article 23

Decision made by Witnesses and Victims Protection Agency regarding the assistance to the Witness and/or Victim must be notified in writing to the recipient within 3 (three) days since the request is accepted.

Article 24

1. In executing the provision of protection and assistance, Witnesses and Victims Protection Agency can cooperate with related competent institutions.
2. The related competent institutions are obliged to execute the decision made by Witnesses and Victims Protection Agency in accordance with the provisions stipulated in this Law.

CHAPTER V

PENAL CODE

Article 25

(1) Every person who impose his or her own will with the use of violence or certain methods, causing the witness and/or victim not to obtain protection as stipulated in Article 5 paragraph (1) point a or point d, so that the witness and/or victim does not present his/her testimony in any stage of court proceeding, is punishable by not more than 4 (four) years of imprisonment and/or by a fine not exceeding Rp. 200,000,000.00 (two hundred million rupiah).

(2) Every person who committed the act stipulated in paragraph (1) so as to inflict severe injury to the Witness and/or Victim is punishable by not more than 7 (seven) years of imprisonment and/or by a fine not exceeding Rp. 500,000,000.00 (five hundred million).

(3) In terms of such action stipulated in paragraph (1) and (2) is committed by a Public Official, the punishment is increased by 1/3 (a third).

Article 26

(1)  Every person who obstructs in any way, so that the Witness and/or Victim does not obtain protection or assistance, as stipulated in Article 5 paragraph  (1) f a and point d, Article 6, or Article 7 paragraph (1), is punishable by not more than 5 (five) years of imprisonment an/or by a fine not exceeding Rp. 300,000,000.00 (three hundred million rupiah).

(2)  In terms of such action as stipulated in paragraph (1) is committed by a Public Official, the punishment is increased by 1/3 (a third)

Article 27

Every person who causes the Witness and/or Victim or their families to lose their job because the Witness and/or Victim give an honest testimony in a court proceeding, is punishable by not more than 7 (seven) years of imprisonment and/or by a fine not exceeding Rp. 500,000,000.00 (five hundred million rupiah).

Article 28

Every person who causes the Witness and/or Victims to lose their rights as stipulated in Article 5, Article 6, or Article 7 paragraph (1), because the Witness and/or Victim give an honest testimony in a court proceeding, is punishable by not more than 3 (three) years of imprisonment and/or by a fine not exceeding Rp. 100,000,000.00 (one hundred million rupiah).

Article 29

(1) Every person who informs the whereabouts of the Witness and/or Victim who is under protection in a special place secretly arranged by the Witnesses and Victims Protection Agency as stipulated in Article 5 paragraph (1) point k, is punishable by not more than 3 (three) years of imprisonment and/or by a fine not exceeding Rp. 100,000,000.00 (one hundred million rupiah).
(2) In terms of such action as stipulated in paragraph (1) is committed by a Public Official, the punishment is increased by 1/3 (a third).
 

CHAPTER VI
TRANSITIONAL PROVISIONS

Article 30

Witnesses and Victims Protection Agency must be established within paling 1 (one) year after this law comes into effect.

Article 31

These provisions are applicable to the Witness and/or Victim who is currently in court proceeding which has not resulted in a verdict with a permanent legal force by the time this Law comes into force.

 
CHAPTER VII

FINAL PROVISIONS

Article 32

This Law shall come into force on the date of its promulgation.

For public knowledge, the promulgation of this Law shall be made in
the State Gazette of the Republic of Indonesia.

Stipulated in Jakarta
On
                       
PRESIDENT OF THE REPUBLIC OF INDONESIA
Promulgated in Jakarta
On

              
STATE SECRETARY OF REPUBLIC OF INDONESIA

STATE GAZETTE OF THE REPUBLIC OF INDONESIA

DRAFT OF EXPLANATORY NOTE
ON

LAW OF REPUBLIC OF INDONESIA
ON

WITNESS AND VICTIMS PROTECTION

 I. GENERAL.
 

The success of a court proceeding is determined by evidence revealed or bring forth. In a court proceeding, especially one related to Witnesses and Victims, there are many cases that failed to be brought to justice due to lack of witnesses and victims who can support law enforcers’ task. Therefore, the existence of Witnesses and Victims is a very determining element in a court proceeding. The role of Witnesses and Victims in court proceeding so far has been far out of community, as well as law enforcers’, attention. Many cases were unresolved and unsettled due to Witnesses and Victims’ reluctance to give their testimony to law enforcement officers because of the threat that they received from certain parties.

Witnesses and Victims protection in Indonesian court proceeding is a fact that is very different from the protection provided for the suspected or accused offenders in Law No.8/ 1981 on Criminal System (KUHAP) which has formulated several rights for the suspected or accused offenders to protect them from various possibilities of violations against their human rights, as regulated in Article 50 to Article 68 KUHAP. Therefore, it is time to pay a bigger attention to other parties involved in a court proceeding especially the Witnesses and Victims.

Based on the principle of equality before the law that becomes one of the requirements of a country based on law, Witnesses and Victims within a court process must also be given a set of law to guarantee legal protection for Witnesses and Victims. The main contents of provisions on the protection of Witnesses and Victims principally contain several points as follows:

1. definition of Witness and Victim.
2. protection and the rights of Witness and Victim.
3. an agency that provides protection for Witness and Victim.
4. procedure of the provision of protection for Witness and Victim.
5. sanction to officials who refuse to provide protection.
6. sanction to those who obstruct protection for Witness and Victim.

II. ARTICLE BY ARTICLE

Article 1

Article 2

Article 3

Point a
The roles of Witnesses and Victims so far has never received adequate attention from law enforcers despite the fact that Witnesses and Victims play a big role in revealing an offence.
Point b
This right also includes the right to be free from torture or from inhuman and cruel treatment in accordance with the Convention Against Torture that has been ratified by the Indonesian Government.
Point c
The suspected and accused offenders have been given a set of rights in KUHAP and a Witness and Victim should obtain justice as well.

Article 4

Article 5

Paragraph (1)
Point a.
Such protection is the main protection needed by Witnesses and Victims. If deemed necessary, Witnesses and Victims must be relocated in a place that is kept secret from any person in order to ensure the Witnesses and Victims' safety.
Point b.
Point c.
This right is required because often times the Witness and Victim is an ordinary person who does not understand law and its legal proceedings so that a guidance in going through a court proceeding is needed.
Point d.
Point e.
This right is given to Witnesses and Victims who are not fluent in Indonesian language with the intention of smoothening the court proceeding.
Point f.
Point g.
Most of the times, the Witness and Victim only play a role in giving testimony before the court but they are not informed about the development of their case. Therefore it is appropriate to give them information about it so that the Witness and Victim are aware of how far their inputs have been used by the court system.
Point h.
This information is important to be acknowledged by the Witness and/or Victim at least as a sign of appreciation for their willingness to participate in the court proceeding.
Point i.
The Witness and Victim’s fear for vindication from the offenders is often reasonable and therefore they should be notified if a convict is about to be released.
Point j.
In various cases, especially related to organized crimes, the Witness and/or Victim’s safety is compromised even though the offender has been punished. In certain cases, provision  of new identity can be considered.
Point k.
If their safety is considered of great concern, relocation for the Witness and/or Victim should be considered so that the Witness and/or Victim can continue their lives without a prolonged fear after their testimony that caused the offender to be punished because of a serious crime.
Point l.
In many cases, the Witness and/or Victim do not have enough resources to afford to come to the location of the authorized officials so that they need to receive financial assistance from the State. Such regulation already exists on the court level but rarely implemented for various reasons.
Paragraph (2)

Article 6

Point a.
Act of violence basically causes physical harm on the victim. In such case, the State is obliged to provide assistance to the Victim to heal his injuries.
Point b.
In terms of the Victim suffering from trauma or other psychological problems, a psychologist’s help is greatly needed to help the Victim carry on with his or her life that was damaged by the act of violence.

Article 7

Paragraph (1)
Point a
Point b
This is intended to arouse a sense of responsibility on the offenders and their concern about the victims’ suffering.

Article 8

Article 9

Paragraph (1)
Serious threat in this paragraph means a threat that can cause the Witness and/or Victim unable to give their testimony.
Paragraph (2)
Authorized official in this paragraph means officials from the State Police, Attorney General, and judges or Notaries.
Paragraph (3)
The presence of this official is to ensure that the Witness and/or Victim s not under any intimidation or pressure when they give their testimony.

Article 10

Article 11

Paragraph(1)
An independent agency means an agency that is independent without any interference from any parties.

Article 12

Article 13

Paragraph (1)                                
The element of Community Organizations also includes traditional leaders or religious leaders.

Article 14

Article 15

Article 16

Article 17

Article 18

Point a
Point b
Point C
This provision is intended to protect the Witness and/or Victim themselves from various possibilities that might weaken the protection on him.

Article 19
   
Article 20

Article 21

Article 22

Article 23

Article 24

Related competent institutions are government organizations and non-government or community organizations which possess the capacity and rights to provide assistance either directly or indirectly to support the performance of Witnesses and Victims Protection Agency where needed and the presence is approved by Witness and Victim.

DRAFTERS' EXPLANATORY NOTE
ON
DRAFT BILL
WITNESSES AND VICTIMS PROTECTION

The presence of a fair trial is a requirement and a basic principle of universal human rights universal and a characteristic of a democratic nation. The smoothness and success of a trial, especially a criminal court, will depend on evidence presented at the trial. One of the determining evidence is Witness and Victims’ testimony.

As we are all aware of, many cases have not been able to be solved immediately or were completely unresolved due to lack of or unavailable evidence obtained from, among others, witness and victims. Most witness and victims feel reluctant or afraid of giving testimony because they do not have clear legal protection. Especially in prominent cases that might involve parties with certain power or authority in the community, enabling them to have the opportunity to exert pressure or intimidation on the Witness and Victims not to testify.

On the other hand, concern from law enforcers, even from the community, about the importance of protection for Witness and Victims, as well as for their families, is still lacking. This situation is also emphasized by lack of legal instruments which provide guarantee for witness and victims to be able to express what they hear, see and experience on their own.. Kitab Undang-undang Hukum Acara Pidana (KUHAP, Criminal Code Procedures), which is said to be an Indonesian masterpiece, or other laws and regulations have not provided protection for Witness and Victims. One exception is Law No.26/2001 on Human Rights Court which obliges the regulation of protection fro witnesses and victims through a Government Regulation, and has resulted in Government Regulation No. 2/2001 on Procedure of the Protection for Witnesses and Victims in Violation against Human Rights.

The lawmakers in the past seem to have focused more on legal protection for the perpetrators of crimes, while neglecting protection for witness and victims, despite the fact that without the presence of witness and victims, law enforcement will not be upheld appropriately in justice. Therefore, a set of law which provides protection for witness and victims is greatly needed to give legal certainty.

The draft of bill on Witness and Victims Protection consists of seven chapters and elaborated into 32 articles, with the following details:
I.      GENERAL PROVISIONS
General Provisions in the Draft contains several definitions such as for Witness, Victims, Court Jurisdiction, Witnesses and Victims Protection Agency, Threat, Witness and Victims’ Families and Protection. This chapter also contains the principles and objectives of witness and victims’ protection.
II. PROTECTION AND THE RIGHTS OF WITNESS AND VICTIMS
A Witness and Victim is entitled to obtain protection of his or her personal safety against any threats both physical and psychological from other people, related to the testimony that he or she will give, is giving or has given on an offence. Furthermore, a set of rights is awarded to the Witness and Victim, such as the right to choose and determine the form of protection and security support, the right to obtain legal advice, the right to give information without pressure, the right to obtain new identity and new residence, and the right to obtain a reimbursement for any transportation expenses deemed necessary. In cases of crime with violence and serious violation against Human Rights, a victim is also entitled to obtain medical assistance and psychosocial rehabilitation, and compensation and/or restitution.
III. WITNESSES AND VICTIMS PROTECTION AGENCY
Witnesses and Victims Protection Agency is an independent agency responsible for providing protection and assistance to Witnesses and Victims. Members of this agency consist of elements from the National Commission for Human Rights (Komnas HAM), State Police, Attorney General, Department Justice and Human Rights, Academia, and Community Organizations. The expense for this agency is born by the State.
IV. PROCEDURES FOR THE PROVISION OF PROTECTION AND ASSISTANCE
It is governed that in order to obtain protection and/or assistance, a Witness or Victim must submit a request for protection to the Witnesses and Victims Protection Agency. The Agency will then conduct an assessment on the request for protection or assistance and give its decision on the whether or not the protection and assistance is needed to be given to the Witness or Victim. In executing the provision of protection and assistance, the Witnesses and Victims Protection Agency can cooperate with related competent institutions.
V. PENAL CODE
This penal code contains applicable imprisonment and/or fine for every person who imposes his or her will or obstructs in any way, so that the Witness and /or Victim do not give their testimony. This punishment is increased by a third if the crime is perpetrated by a public official. Punishment is also given to every person who causes the Witness and/or Victim to loss their job or their rights because of their honest testimony in a court proceeding.
VI.     TRANSITIONAL PROVISIONS
The period given for the establishment of a Witnesses and Victims Protection Agency is within one year after this law comes into effect. These provisions are also applicable to the Witness and/or Victim who is currently in court proceeding which has not resulted in a verdict with a permanent legal force by the time this Law comes into force.
VII.    FINAL PROVISIONS
This part stipulates the date of when this bill comes into force.

Hereby the brief explanation from the drafters about the necessity of Draft of Bill on Witnesses and Victims Protection and the contents of the bill.

Jakarta, June 2002
DRAFTERS