Trafficking in persons

1028 k/PID SUS/2009

UNODC No.:
IDN001

Fact Summary

On 23 January 2008, the defendant ran a Café and his friend named Ekawati brought the victim with her on the pretext that they were going to pick up Ekawati’s boyfriend and go to the defendant’s house for a birthday party. Ekawati told the victim that in case it got late at the party they would all stay the night at the defendant’s house. When the victim woke up the next morning, Ekavati and her boyfriend had left and the defendant then urged the victim to work at her Café by serving drinks and accompanying male clients who visited. The victim being too scared to do anything conceded and worked at the bar. It is known that thereafter, the victim was also forced into having sex with the clients and whatever payment she received from such clients was handed over to the defendant. The victim had attempted to run away several times however, the security at the Café was very tight and she was unable to do so.

Three days after the birthday party incident, Ekawati approached the defendant for a payment of Rp. 500,000 as transportation costs for transporting the victim till the defendant’s house.

Then on 8 June 2008, this sex racket was uncovered by the police and the defendant was arrested and taken to the police station for questioning under section 2(1) of Law No 21 of 2007 in relation to Eradication of Act of Human Trafficking.

Sentence Date:
2009-06-02
Author:
White & Case LLP

This work was developed through a partnership with UNODC, Lawyers Without Borders and White & Case LLP

Keywords

Acts:
Recruitment
Form of Trafficking:
Internal
Means:
Abduction
Abuse of power or a position of vulnerability
Giving or receiving payments or benefits to achieve the consent of a person having control over another person
Sector in which exploitation takes place:
Commercial sexual exploitation
Purpose of Exploitation:
Exploitation of the prostitution of others or other forms of sexual exploitation

Cross Cutting

Liability

... for

• completed offence

... based on

• criminal intention

... as involves

• principal offender(s)

Application of the Convention

Involved Countries

Indonesia

• Gender Dimension

Procedural Information

Legal System:
Civil Law
Latest Court Ruling:
Supreme Court
1st Instance:

Lower Court of Stabat

18 December 2008

Citation no 57/PID.B/2008/PN-Stb

The Court found the defendant guilty of human trafficking under section 2(1) of Law no 21 of 2007

 

2nd Instance:

High Court of Stabat

24 February 2009Citation no 570/Pid.B/2008/PN-Stb

The Court of 2st Instance, charged the defendant as guilty for human trafficking. The court sentenced the defendant to 10 years imprisonment and a fine payment of Rp. 120,000,000.

 

3rd Instance:

High Court of Medan

citation no 100/PID/2009/PT-MDN

The High Court of Medan upheld the decision of the Lower Court in respect of the payment of fine. However, the Court sentenced the defendant to 7 years imprisonment.

 

 
 

Victims / Plaintiffs in the first instance

Victim:
R.R.
Gender:
Child
Nationality:
Indonesian
Age:
14

Defendants / Respondents in the first instance

Defendant:
Binjai
Gender:
Female
Age:
35
Born:
1973
Legal Reasoning:

The Court of 1st Instance charged the defendant under section 2(1) of Law No 21 of 2007 in relation to the Elimination of Human Trafficking. In order to charge a person under the said section the following criteria must be met:

1. Each person

2. who carries out the act of recruiting, transporting and transferring by use of threat or use of force or other forms of coercion, kidnapping, fraud, deceit, misuse of power or position of vulnerability and giving or receiving payments or benefits to achieve the consent of a person having control over another person.

3. for the purpose of exploiting another person within Indonesia

On the first element: each person refers to a natural legal person. Based on the evidence and the statement of the witnesses provided it is clear that the defendant is the same person as stated in the prosecutor’s report and therefore, the first element was met.

On the second element: This element has been interpreted to mean that if anyone one of the actions is fulfilled that would mean that this element has been met. Based on the facts of the case, it is seen that Ekawati fraudulently brought the victim to the defendant’s house and the defendant paid Ekawati a certain fee for bringing the victim over. Hence at this point we see the elements fraud and receiving payments evoked.

Thereafter, the defendant deceived the victim by telling her to work at the Café’ as a server whereas the defendant’s intention was to make the victim work as a sex worker. Further, the victim was coerced into such work and she lived under constant fear. These facts go to show that the second element was also met.

On the third element: Exploitation means an act done against the will or desire of the victim. The facts of the case clearly show that the victim was brought to work in the Café’ as a server and thereafter forced to work as a sex worker for the customers of the Café’. Further, the money earned by the victim through such work was taken away by the defendant and the victim was not paid a salary. In the event the victim refused to give the money earned to the defendant she was threatened and scolded by the defendant and thus leaving no choice for the victim but to hand over the money. Based on the above, it is clear that the element of exploiting another person within the territory of Indonesia was met.

Since the elements under section 2(1) of Law No 21 of 2007 was met by the facts of the case, the Court of 1st Instance charged the defendant with human trafficking and sentenced the defendant to 10 years imprisonment with a fine payment of Rp. 120,000,000 (approx $12,000).

Charges / Claims / Decisions

Defendant:
Binjai
Verdict:
Guilty
Charge / Claim:
Human trafficking under the Child Protection Act
Legislation / Statute / Code:

Law No 4 of 2004, Law No 8 of 1981 and Law No 14 of 1985 (as amended by Law No 5 of 2004 and Law No 3 of 2009)

Term of Imprisonment:
7 years
Compensation / Payment to Victim:
No     
Fine / Payment to State:
Yes       
Appellate Decision:
In Part

Appeal:

The defendant appealed the decision of the High Court on the following grounds and urged the Supreme Court to provide its decision on the following matters:

1. The case was tried by the wrong Court of 1st instance. As the facts of the case spread over two jurisdictions, the defendant has requested the Supreme Court to annul the decision of the lower court as the same is not the competent court to issue a verdict in this case.

2. The High Court had sentenced the defendant under the wrong law and hence the same should be re-evaluated by the Supreme Court.

3. The sentencing of 10 years by the Court of 1st instance and then 7 years by the High Court based on the facts of the case is an error as the court did not consider the fact that the victim had stayed with Ekawati before coming to the defendant’s house and therefore the health and condition of the victim may have worsened long before the victim was brought to work with the defendant.

The Supreme Court decided as follows:

1. The reasons brought by the defendant for appeal as regards the wrong decision provided by the Court of 1st instance and the High Court does not hold good. The fact that the defendant has committed a crime has been proven and such verdict by the courts is deemed right.

2. As for the wrong sentencing by the courts, this is a judex facti matter (question of fact of the case) and therefore, the Supreme Court cannot rule upon this. The Supreme Court in this case can rule solely on the wrong usage of the law and not on the facts of the case itself.

Therefore, based on the above, the appeal of the defendant was rejected and the decision of the High Court was upheld.

Court

Supreme Court (Mahkamah Agung)

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