Reconstruction of Restitution Rights for Victims of Human Trafficking Criminal Acts Based on Legal Independence in Victim-Oriented Criminal Procedure Law

Abstract

The construction of Indonesian criminal procedural law, as enshrined in the Criminal Procedure Code (KUHAP), has historically emphasized an offender-oriented paradigm, reducing victims to mere living evidence for the benefit of state prosecution. This situation has negative implications in cases of Human Trafficking (TPPO), where the right to economic recovery through restitution, as regulated in Law No. 21 of 2007 and PERMA No. 1 of 2022, is doctrinally accessory. As a result, the fulfillment of victims' rights is held hostage procedurally and creates a systemic "evidentiary gap," where failure to prove the perpetrator's crime automatically revokes the victim's right to recovery. This normative legal research, using a statutory and conceptual approach, examines this gap through layered theories: Gustav Radbruch's Theory of Legal Purpose (grand theory), Arif Gosita's Theory of Victimology (middle theory), John Braithwaite's Theory of Restorative Justice and Satjipto Rahardjo's Theory of Progressive Law (applied theory). The analysis reveals an acute dissonance resulting from the dominance of procedural legal certainty over substantive justice, which triggers secondary victimization for victims. As a novel contribution, this study proposes the concept of Juridical Independence of Restitution, which transforms the relationship between criminal proceedings and restitution into a facultative alternative based on the Established Fact Doctrine. Through this model, judges are authorized to independently decide on restitution using a reasonableness test based on trial facts, supported by the expansion of the LPSK's authority and the establishment of a Victim Compensation Fund as a social justice safety net.